Small v. United States , 470 F.2d 1020 ( 1972 )

Nichols, Judge,

delivered the opinion of the court:

This suit for back pay is before us on cross motions for summary judgment, with supporting documents. Our conclusion is that defendant is entitled to summary judgment, for reasons that will appear.

The plaintiff, who is black, has been an employee of the Grounds Maintenance and Miscellaneous Services Section, Engineering Division, of the Veterans Administration Center at Dayton, Ohio, since 1951. He was a Kitchen Helper, CPC-2 at first, and was a WA-8 from 195T to 1968, but became a WA-4 in 1969 and a WB-6 in 1970, as a result of promotion actions following his complaint. April 4, 1968, when his actual work was digging graves, he filed this complaint with the VA alleging racial, religious, and national origin discrimination against him, naming 10 Caucasians as the discriminators, and requesting the following remedies:

1. Cease and desist discrimination reprisal against me.

2. I would like to be treated as a human being as white employees.

3. 'I would like better working conditions and modem equipment to work with.

4. I would like to participate in a training program for advancement.

He requested a complete and formal investigation and hearing.

The Civil Service Commission had completed its action in this case before passage of the Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 103, approved March 24, 1972, and plaintiff also had sued here before that date. The parties agree that that Act, adding new provisions respecting discrimination charges by Government employees, by their terms does not either diminish or enlarge our jurisdiction of this particular case. "Whatever it was before March 24, 1972, it still is as we all agree. The parties also join in opposing any remand to the Civil Service Commission for additional findings.

Eor many years before March 24, 1972, a United States Government employee could have looked to a series of Executive Orders 'for safeguards against discrimination on account of race. The earliest one relevant here is E.O. 9980, July 26, 1948, 13 F.E. 4311. There followed E.O. 10590, January 19, 1955, 20 F.E. 409; E.O. 10925, March 8, 1961, 26 F.E. 1977; E.O. 11246, September 24, 1965, 30 F.E. 12319, and E.O. 11478 August 12, 1969, 34 F.E. 12985. All declare a rule and policy against racial discrimination in Federal employment, and all prescribe procedures for processing of discrimination complaints, varying somewhat from Order to Order. If it is material, none of them mention possible lawsuits. The provision in the Civil Eights Act of 1964, 5 U.S.C. § 7151 (Supp. Y1965-69), which reads:

It is the policy of the United States to insure equal employment opportunities for employees without discrimination because of race, color, religion, sex, or national origin. The President shall use his existing authority to carry out this policy.

may be taken as ratifying such of these Orders as had then been issued, authorizing similar ones for the future, and placing entire reliance on them to prevent discrimination in Federal employment. This 1964 Act contained provision for complaints 'and lawsuits against private employers, but they were not then made applicable to the United States.

The then Executive Order, 11246, effective in 1968, called for an investigation by the 'agency complained against, followed by a hearing. The investigation of plaintiff’s complaint was exhaustive, with many statements and affidavits. Mr. Wells, Employment Policy Specialist, made the following summary of what it revealed:

This is with reference to the complaint of discrimination because of race of Mr. Joul Small, Grounds 'Maintenance and Miscellaneous Services Section •(¡Cemetery), Engineering Division, against officials of the VA Center, Dayton, Ohio.

Ón the basis of a review of the total record of the matters raised in this complaint I have concluded that there is no evidence of record’ to substantiate Mr. Small’s contention that he was subjected to personal racial discrimination by the Center Director, the Assistant Director, the former Personnel Officer or by the former supervisory personnel whom he had accused of being discriminatory toward him. However, the evidence does corroborate bis contention that on several occasions in the years past he had requested on-the-job training to improve his manual skills. I find that the reasons given for the nonselection of Mr. Small for such training rested upon questionable grounds.

Further, the testimony and available information of record indicates Mr. Small’s failure of selection for position of 'Laborer WA-B in 1951 and for position of Gardner WA-4 in 1956. Caucasians were selected for these positions. In the latter case the person selected came from outside the station. In the absence of additional information of record we find that the nonselection of Mr. Small rested upon nonpersuasive grounds.

Accordingly, it as my decision that Mr. Small’s race could have been a factor of consideration in these matters involving his failure to be given on-the-job training and his failure of promotion. Mr. Small’s charge of discrimination is not disproved regarding these matters.

The record indicates that discussion of the findings of investigation of Mr. Small’s complaint included consideration of this information which has resulted in his promotion to Laborer-Equipment Operator WA-4, and an opportunity for his participation in an advanced training program for progressive advancement in the field of Equipment Operator.

Thus, the corrective action taken ¡by the Hospital Director that Mr. Small be promoted to WA-4 'and provided certain training in order to meet eligibility requirements for advancement is considered to be the appropriate remedial action.

Although Mr. 'Small requested a hearing as well as the investigation of his complaint, I have decided not to honor his request for a hearing. As a result of the review and discussion of the report of investigation at the station, I consider the finding of discrimination because of race and the remedial action taken, an appropriate disposition of the complaint.

W. C. WELLS

Employment Policy Specialist

Though not mentioned in the summary, the full record shows the VA also selected a Caucasian over plaintiff’s unsuccessful application to be Gardener WA-6 in 1961. The same year the position of the same person was redesignated “Supervisor” Gardener WAS-8. It was not found whether plaintiff was “within reach”. Plaintiff applied for plasterer’s positions WA-5 three times in 1954-57 and other blacks were selected. He applied for a truck driver position and a plasterer’s position in 1967 and 1968 and was deemed qualified, but each time another black was selected. Apparently in that activity promotion vacancies were few and when there were any the list of qualified applicants was long.

The VA Discrimination Complaints Officer, Mr. Holland, reviewing this record, found:

* * * there is evidence to substantiate his charge that race was a factor in his failure to obtain on-the-job training to improve his skills and nonselection for promotion. * * *

He noted that Mr. Small had been promoted to WA-4 and given a chance to participate in a training program to improve his skill. He considered these to be

“appropriate remedial action”.

In view of the appropriate disposition of the complaint he decided not to allow a hearing. The record includes a similar report of the same date to the Civil Service Commission. In this Mr. Holland further said:

* * * Further, the testimony and available information of record indicates complainant’s failure of selection for two positions for which he was qualified. In each matter of promotion a Caucasian was selected and the most recent position vacancy was filled by a Caucasian from outside the station. * * *

He reiterated that the promotion and training were an appropriate disposition of the complaint, and a hearing had been denied for that reason.

The record reflects, as stated above, that in 1951 and 1956 two Caucasians were appointed to positions above plaintiff’s in the Division to which he was attached, the 1956 one being from “outside the station.” (The reason why his being from “outside the station” added to the enormity of the asserted discrimination is nowhere stated. We may take judicial notice that in Federal personnel practice a person from “outside the station” sometimes has a right to compete for a vacancy.) The files respecting these and all other relevant personnel actions prior to two years before the date of investigation (whether or not mentioned above) had been disposed of and were unavailable for review. Plaintiff was passed over in two other reviewable promotions for which he was recognized to be qualified, in 1967 and 1968, but in both instances the person selected was another black; therefore, these were not the instances Mr. Holland refers to. The record further reflects that plaintiff was represented by counsel during the entire period the complaint was pending.

Plaintiff, as was his right under the Executive Order-appealed to the Board of Appeals and Review, Civil Service Commission (BAR). The appeal, dated February 26, 1969, says that the findings showed 15 years of discrimination respecting training and promotional opportunities, that plaintiff, though denied advancement beyond Grade WA-3, was qualified for WA-9, and therefore that the meager remedy granted, one step to WA-4, was grossly inadequate as remedial action. The remedy requested was that the BAR order immediate promotion to the grade WA-9 level.

The appeal does not mention the refusal to grant a hearing as a ground of appeal, and therefore the BAR could have taken it, and apparently did, as an election to rely on the record actually made, which was indeed voluminous.

The BAR decision, April 2,1969, recites the decision above mentioned, summarizes the appeal, and notes that a training program had been set up for plaintiff in order to qualify him as a heavy equipment operator, and that as of January 25, 1969, he had received 152 hours of such training. It said in view of the foregoing affirmative steps, there was no further action which could be taken, and therefore, the appeal was denied.

This lawsuit followed. It asks for back pay from 1954 on the basis of a schedule of promotions counsel supposes plaintiff would have received, but for discrimination, WA-3 by 1954, WA-5 by 1958, WA-7 by 1961 and WA-9 by 1966, with back pay totalling $18,430 at the petition date.

A majority of us hold that whether or not we have jurisdiction, even if we do, in any event the decision of the BAR is not arbitrary or capricious and has the support of substantial evidence so far as it denied further relief. This is the only position that has the support of the majority of judges, and is stated in this opinion as the opinion of the court. When our jurisdiction is denied by a party, we are not required to decide whether we have j urisdiction or not if the case is submitted on cross motions for summary judgment, with documents, and we can see from these documents that the claim is without substance on its face. Monett v. United States, 190 Ct. Cl. 1, 419 F. 2d 434 (1969), cert. denied, 400 U.S. 846 (1970). That is the situation here.

We consider first whether plaintiff was entitled to a hearing and should have had one. The relief may have been all the cognizant officials thought plaintiff originally asked for and was entitled to, but it was still less than he later demanded. His original complaint, never formally amended, though he had counsel, did not ask for any specific promotion, and certainly could have been read as asking for not more than he got, apart from the demand that he get better working conditions, modern equipment, and to be treated as a human being. These were hardly susceptible of legal adjudication. If the demand for a hearing was valid, notwithstanding the relief granted, it certainly should have been asked of the BAR, or assigned to it as a ground for reversal, if we are to hold the BAR’S not granting one or remanding the case for one, to be arbitrary or capricious.

We disregard, however, the failure to demand back pay in the BAR appeal, because plaintiff’s counsel no doubt knew that such a demand, placed there, would have been futile. Allison v. United States, 196 Ct. Cl. 263, 451 F. 2d 1035 (1971).

That plaintiff was long refused in-service training is supported by evidence, but there is nothing to show the refusal was discriminatory, in the sense that that training was given to those of the other race, similarly situated. Moreover, plaintiff’s theory throughout was that he had qualifications for promotion, even without further training, and therefore it is difficult to identify non-training as the effective reason why plaintiff was not promoted when he was not. In his appeal, moreover he said he had actually been doing the work of a WA-9 for years. It would appear, in these circumstances, the appropriate remedv for denial of in-service training was to grant in-service training, which was promptly done, before completion of the investigation. If we awarded back pay, we would have to determine that plaintiff should have been in a higher grade than he was on some particular date, and therefore, the failure to train does not afford plaintiff a bypass around the question whether plaintiff’s non-promotion was contrary to the applicable E.O., at any time.

Beading Mr. Holland’s finding of two cases of discriminatory failure to promote the plaintiff, it has been shown that the cases he refers to must have been those that assertedly occurred in 1951 and 1956. Yet the record shows that the charges as to them could not be substantiated by the promotion files, which had been destroyed. Our attention is called to no statements based on recollection to support them either. It is mere supposition that these actions were discriminatory in any respect, even as favoring the man “from outside the station”. The only actual fact in the record is that Caucasians were appointed to positions in the years mentioned. There is nothing to show what claim on the positions the Caucasians had; the destroyed files probably would have shown that. It appears that Mr. Holland, apparently in his zeal to justify the modest action taken, goes much beyond his documentary source, the investigative record. Mr. Wells has been quoted above. It appears he found no “personal racial discrimination” on the part of any of the persons named in the original complaint. Then in apparent contradiction, he goes on to recite the denial of on-the-job training, and the 1951 and 1956 supposed non-promotions. He seems to throw the burden of proof on the agency to disprove the charges, a burden that assuredly would have been difficult to sustain in the absence of the files.

We think the most obvious explanation of this Summary is that Mr. Wells changed function midway in writing it. After finding that plaintiff had no legal basis for his complaint, not having proved he was wronged by any specific personnel action, he puts on a conciliator’s hat, and in that capacity recommends and obtains the adoption of certain measures. Both roles appear appropriate ones for him under the various Orders, as we develop more fully below. Mr. Holland misunderstands and misconstrues this Summary.

Defendant says these findings lack support in substantial evidence, and so far as concerns the alleged 1951 and 1956 discriminatory non-promotions, if they really are findings, this is plainly so. Defendant also denies that discrimination occurred against plaintiff at any time. This fact sharply distinguishes this case from Chambers v. United States, 196 Ct. Cl. 186, 451 F. 2d 1045 (1971), and Allison, sufra, too, in both of which the majority thought that the defendant’s concession that discrimination took place almost, if not entirely, removed the issue from the scope of judicial inquiry.

Mr. Holland chose to believe that personnel actions taken in 1951 and 1956, seventeen and twelve years before the filing of the complaint, were discriminatory, in face of the destruction of the files long prior to 'any complaint about them. He supposed he could not award back pay, so the legal consequences of his belief, apparent to him, were minimal, though it supported the action he took. Plaintiff, however, would start a hypothetical career from those dates, arriving at six years before action brought, 1964, already several grades above his then actual WB-3. This technique would appear to have limitless possibilities. If a person was in Federal service long enough, he might be given by counsel a hypothetical career, absent discrimination, that would make him a hypothetical Department head, Ambassador, or Supreme Court justice, with emoluments appropriate, before reaching the magic date six years before action commenced. We all know that in real life promotions bring people to the highest levels for which they are competent, or, according to a theory bandied about recently, at least half seriously, the lowest level for which they are incompetent, and what these levels are, for any person, can only be determined by actual trial and error. For these reasons, we have 'hitherto generally refused, in awarding back pay, to postulate supposititious promotions. See discussions in Chambers and Allison, supra. The exceptions must be produced otherwise than by the mere imagination of a court of law. A hypothetical promotion on top of a hypothetical promotion must be particularly suspect, and so also must be even a single hypothetical promotion awarded at so remote a date that the evidence has been lost, that once would have 'permitted a realistic test whether, but for discrimination, the promotion would have been made actual.

Mr. Small himself stated he did the work of a WA-9 and possessed all its qualifications, and this, to be fair, distinguishes counsel’s career projection herein from the supposed case that he had projected a Supreme Court justiceship or an Ambassadorship. The agency itself had determined he had qualifications above his grade, for certain positions. However, Mr. Wells and Mr. Holland evidently did not believe Mr. Small entirely for they considered in-service training necessary for him to meet “eligibility requirements” for positions above WA-4. Plaintiff’s supervisor, Mr. Fishpaw (Caucasian) was a WA-6, and the fact finder rejected plaintiff’s assertion that he did the same work as Mr. Fishpaw. Fishpaw was a “working foreman” over about six persons. When not supervising, he did the same work they did.

Defendant before us takes the hard-nosed position that the record shows no substantial evidence of discrimination, not even enough to support the relief actually granted our plaintiff. Apparently, by this view, Mr. Wells and Mr. Holland were arbitrary and capricious in awarding the remedies they did. Defendant need not repudiate its officials in this manner. It overlooks the fact that there exist and must exist gray areas where nobody can properly be accused of legal wrong, yet officials are not moving affirmatively as the E.O.’s seem to require they must, to create a working environment that is fair and just to people of minority races, and others within the E.O.’s protection. Thus there will be cases where executive action is called for, within a broad discretion, but not judicial, and even among justiciable cases there will be some of a nature that prospective relief is called for, but not back pay. We read Mr. Wells and Mr. Holland as holding, rightly it would appear, that Mr. Small’s case was in that gray area, and that it was up to the Veterans Administration to move affirmatively to Mr. Small’s assistance, as it did. The ambience in the work area involved was apparently not favorable to the fair advancement of black people in the manner successive Presidents have desired and ordained. But, as Mr. Wells said, they could not pin the commission of a legal wrong on any official, i.e., a demonstrably wrong personnel action. Therefore, they did not take tbe case out of tbe gray area. We believe, if award of back pay by us is ever to be justified in this class of case, it is where a clear-cut wrong is shown to have been done to the plaintiff, in a personnel action, at a time and place, and in a maimer that can be identified. If the plaintiff has been wronged, somebody else must have done wrong. It may be, as with other legal wrongs, the result of mistake, or inadvertence, not deliberate evil necessarily. But a wrongdoer there must be. No one could have discriminated against plaintiff in a personnel action, intentionally or inadvertently, without violating the E.O. and therefore being himself a wrongdoer. If the fact finder, as here, exonerates all possible officials from “personal” wrongdoing, it must follow that “personal” wrong was not done. We conclude it follows the case is not appropriate for a back pay award, though no doubt it was for the administrative relief actually accorded.

This idea that a back pay award must be founded on a specific act of discrimination, by a specific official or officials, on a particular date, is not newly announced here. We foreshadowed it in Allison, supra, where defendant admitted discrimination in gross, but we remanded to the Civil Service Commission for findings as to specific promotions, considering vacancies, available funds, etc., which were denied to plaintiffs by reason of discrimination.

We all know that during much of the time the above cited E.O.’s were on the books, effective action to implement them was minimal. 'Career prospects in the United States Government for members of certain minority races remained poor, as they were for women generally. Any such member who has been in Federal employment as long as plaintiff herein probably has not done as well as a male, white, etc., person would 'have done. This of itself does not justify back pay founded on a schedule of imaginary promotions. Most cases will fall in the gray area, remediable only by the “continuing affirmative program” that E.O. 11418 mandates. Pub. L. 92-261 refers to this Order with approval, and puts the authority of Congress behind such programs. It is clear that in future under Pub. L. 92-261 a “personnel action affecting employees or applicants for employment” will trigger the remedies for employee grievances, and we take it this means real actions, •not imaginary ones. It is also clear that back pay will not be automatic for everyone who has a valid grievance. It will be optional 'for the court to award it when “appropriate”. It would be anomalous if the law prior to Pub. L. 92-261 afforded broader remedies, and mandated back pay for everyone discriminated against in gross rather than in specific personnel actions.

The plaintiff refers us to a part of the Civil Eights Act of 1866, 42 U.’S.C. § 1981. Assuming arguendo that it does grant the plaintiff rights that are relevant here, we think the short answer is that it does not make anything a wrong against plaintiff that is not also a wrong under the E.O.’s cited above. We bypassed our jurisdictional doubts and determined, supposing we had jurisdiction, plaintiff had not shown he had suffered any wrong legally remediable other than by the administrative measures actually taken. The conclusion must be the same whatever the source of plaintiff’s right and whatever channel it flowed to him. In any case, the right is not to be discriminated against on account of race, and if plaintiff was not discriminated against, in a manner cognizable in a court of law, on account of his race, he cannot recover.

In Allison, supra, we remanded for specific findings, 196 Ct. Cl. p. 271, 451 F. 2d p. 1039:

* * * which shall show, person by person, whether such person would have been promoted, when, and to what grade or grades, in light of such person’s qualifications, the qualifications of competitors, the existence of vacancies, the availability of funds, and all other factors that Would have properly influenced the exercise of discretion in the making of an actual promotion at the time a promotion was due. (Cite omitted.)

Our dissenters would have us do that here. The difference, however, is that plaintiff’s case has already been examined in detail. A record and findings are already before us. Whatever else they show, they make it clear that a schedule of supposi-titious promotions would be an exercise of the imagination, without record support.

Accordingly the plaintiff’s motion for summary judgment is denied, the defendant’s motion for summary judgment is allowed, and the petition is dismissed.