Nell Pendleton, Individually and on Behalf of All Others Similarly Situated v. Donald Rumsfeld, Individually and as Secretary of Defense

628 F.2d 102, 202 U.S. App. D.C. 102, 1980 U.S. App. LEXIS 19050, 22 Empl. Prac. Dec. (CCH) 30,795, 22 Fair Empl. Prac. Cas. (BNA) 733

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 1, 1980
• Docket: 78-2148
• Status: Published

Opinions

NICHOLS, Judge:

This case is an appeal from a decision by U.S. District Judge John Lewis Smith, Jr. The case had been pending since 1973, largely because of waiting for decisions in other cases it was vainly hoped would dispose of this one. The name plaintiff, Mrs. Nell Pendleton, brought this action on behalf of herself, and all other black employees at Walter Reed Army Medical Center (WRAMC), alleging racial discrimination against herself and the entire class. One order, the subject of this appeal, denied certification as a class action under Fed.R. Civ.P. 23, but Ms. Helen Martin continues as a coplaintiff. The second order enters judgment for defendant and dismisses the action. The case was tried before a U.S. Magistrate who heard the witnesses and submitted findings of fact and conclusions of law on which the District Judge based his order.

Plaintiffs Pendleton and Martin were black employees of the WRAMC staff, the former being a chemist, GS-9, and the latter a dictaphone transcriber, GS-7. Pendleton was made a temporary chief EEO Counselor, GS-11, and Martin a part-time EEO Counselor. On January 30,1973, General Moncrief, Commandant of WRAMC, terminated both plaintiffs as EEO Counselors, demoting Pendleton back to her GS-9 chemist position. No change in Martin’s grade or pay was effected. That is the action complained of, and General Moncrief took it because of their having participated, as he supposed, in what he regarded as a disruptive demonstration in the offices of Colonel Mary Preston. Other name plaintiffs have been eliminated for various reasons and their participation in the case is not a question we have to pass on.

The suit is founded on Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of March 24, 1972, 42 U.S.C. § 2000e et seq., and more particularly § 704(a), 42 U.S.C. § 2000e-3(a), which provides in pertinent part as follows:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, * * * because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

The judge refused to certify the class because of absence of typicality, the unnamed plaintiffs not having ever been named as EEO Counselors or summarily removed from that position in alleged reprisal for participating in the alleged demonstration. As will be seen, our determination of the claims of Pendleton and Martin will turn on what they were employed to do as EEO Counselors, what they did in the alleged demonstration, and whether their removal was in reprisal, for opposing any practice made an improper employment practice by the applicable law. These issues are peculiar to the claims of Pendleton and Martin. They wanted and still want to make the case into a general inquest into racial discrimination at WRAMC, but this is not an issue in this case. Defendant concedes that such problems existed, if in less pejorative terms, still sufficient for plaintiffs’ purposes, if relevant. It says:

When Walter H. Monerief assumed command of the Walter Reed Army Medical Center in May 1972 * * *, the Center suffered from problems of poor personnel management and racial unrest. * * * Although during his tenure, Walter Reed made significant strides in these areas, not all of the problems were solved right away. * * * [Appellee’s brief, p. 3, record citations and footnote omitted.]

This really says it all, if in bland terms, and amply concedes that the conditions plaintiffs were protesting against actually existed. Thus the issues the District Court and this panel must evaluate are entirely distinct and have nothing in common with the general inquest plaintiffs would like to take place. The District Judge correctly conceded that the claims or defenses of the class members “need not mirror each other” but he quotes Federal Practice and Procedure § 1764 that “Rule 23(a)(3) may be used to screen out class actions when the legal or factual position of the representatives is markedly different from that of other members, even though common issues of law or fact are raised.” A fortiori, we add, when no common issue of law or fact is raised. Bostick v. Boorstin, 617 F.2d 871 (D.C. Cir. 1980). The fundamental error of the appeal is in trying to make an issue out of the alleged or real iniquities of the an-den regime at WRAMC, which no one denies now, and everyone concedes.

Since the court properly refused to certify this case as a class action, the remaining issue is on the merits and is whether removal of the plaintiffs from their positions as EEO Counselors was a breach of the Civil Rights Act provision above-quoted. The plaintiffs were protesting conditions which well may have been subject to protest, but the issues remaining are whether the personnel actions General Monerief took, removing plaintiffs from their duty assignments as EEO Counselors, and in plaintiff Pendleton’s case, reducing her from her temporary GS-11 grade to her permanent GS-9, were reprisals, that “discriminate[d]” against the plaintiffs because they “opposed any practice made unlawful by this sub-chapter,” i. e., by the Civil Rights Act. No one else’s alleged discrimination is in issue.

If there was or had been a discriminatory mentality at WRAMC, there is little to show that General Monerief, a recent appointee, shared it. His mission there was to correct it, and the findings confirm his good intentions. It should be noted that as against allegations of reprisal, General Monerief is entitled to the usual presumption of good faith of official action, rebut-table of course. Cook v. United States, 210 Ct.Cl. 368, 536 F.2d 365 (1976). Unless the contrary is shown, we are required to presume that he opposed violations of the Civil Rights Act, as of all other law, and welcomed exposures of wrongdoing that he could correct; also that he had employed plaintiffs as EEO Counselors to perform effective services along such lines.

Plaintiffs had their day in court on their personal claims, the District Judge having referred the defendant’s motion to dismiss to U.S. Magistrate Henry H. Kennedy for proposed findings and recommendations for disposition, designating him as a “special master.” This was after the court had refused class certification. Magistrate Kennedy conducted an evidentiary hearing, after which he submitted proposed findings of fact and conclusions of law. The authority under which the judge acted, 28 U.S.C. § 636, requires that proposed findings of fact and conclusions of law be served on the parties. This was done and the record reflects that plaintiffs filed no written objections as § 636 and Fed.R.Civ.P. 53 authorized them to do. The District Judge could have concluded that the proposed findings of fact and rulings of law were unobjectionable. Campbell v. United States District Court for N. Dist. of Cal., 9 Cir., 501 F.2d 196, 206, cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974). At any rate, by his order he recited that no objection had been filed, that he adopted the proposed findings of fact and rulings of law as his own, that judgment was entered for defendants and the action dismissed. Plaintiffs had filed out of time a notice of appeal, from the magistrate’s findings of fact and conclusions of law, which apparently was docketed as objections and disregarded for its untimeliness, but in any event failed to enlighten as to the specifics of what was wrong with the magistrate’s work product, except that it upheld the contentions of the wrong party.

Fed.R.Civ.P. 53 required the District Judge to affirm unless the findings and conclusions were “clearly erroneous.” We think, having failed to call his attention to any errors, the parties are too late in attempting to do so here, and in any event, fail to address the specific findings now with exceptions to show how they erred. Instead, each side has favored us with its version of the facts based on selected portions of the transcript, in disregard of the findings. There was much conflict in the testimony, and where any such testimony is contrary to a finding of fact, we may infer that the magistrate disbelieved it.

Findings as to the design, motive and intent with which men act depend peculiarly upon the credit given to witnesses by those who see and hear them. * * [Jackson, Justice in United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949)].

Fed.R.Civ.P. 52 refers to the opportunity of the trier of fact to judge the credibility of witnesses, and findings of fact are not to be set aside unless clearly erroneous. Bostick v. Boorstin, 617 F.2d 871 (D.C. Cir. 1980). We think we may properly make our own findings, in view of what has occurred, only where they are based on uncontradicted evidence and are in no way inconsistent with the magistrate’s findings.

The plaintiffs’ brief, though exhaustive, does not face up to this obligation and show how and where the findings are “clearly erroneous,” supposing that despite their neglect below, plaintiffs retained the right to do this, nor do their attacks as made defer properly to the findings of one in a position to judge the credibility of witnesses. For this reason, we disregard fact assertions that overleap or ignore the findings and call on us to work directly from the transcript. We do consider, however, the uncontested documentary evidence, especially EEO Counseling, Civilian Personnel Pamphlet No. 74, a well written brochure, dated January 17, 1973, which was or should have been the plaintiffs’ bible.

It must further be said that plaintiffs make no claim to legal tenure rights or a property interest in their jobs, by the analysis that has obtained in the Federal courts since Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Their sole claim is that management has discriminated contrary to the statute, and if discrimination is not found, inquiry is at an end. Specifically, the inquiry properly was held not to be whether General Moncrief would have been “better advised to have retained plaintiffs in their positions.” If, as alleged, his reaction was “ill informed and rash” this was found not relevant to a violation of the Act.

Plaintiff Pendleton was first employed as an EEO Counselor in April 1972, and did such good work she received a citation. In August she was promoted to Chief EEO Counselor, a full-time job. Martin became a part-time EEO Counselor in October. General Moncrief had been Commandant since May 1972, and as a result of previous investigations, was specially charged with improving Walter Reed’s “personnel practices and racial problems.”

On January 29, 1973, an incident took place in the offices of Colonel Mary Preston in the Food Services Division. General Moncrief discharged plaintiffs from their EEO positions January 30 and 31, for reasons not stated in the dismissal letters. General Moncrief later informed Martin the removal was because of participation in the above-mentioned incident. Plaintiffs asserted this incident was a press conference, but Magistrate Kennedy resolved conflicting testimony to find that the incident was “if not quite an unlawful, disruptive demonstration, much more than a press conference.” About noon “Jan. 23” [sic., evidently Jan. 29 is meant], a large group crowded into Colonel Preston’s office, including media and persons who would normally have been working. They spilled over into the hallway adjacent to the cafeteria. The meeting was not a question and answer session between press and spokespersons, but a reading of numerous grievances of food service workers. There was no violence, but “the crowd was abnormally vocal.” Neither Colonel Preston nor the General had given permission for use of her office in this fashion. Thus it was a demonstration rather than a press conference.

Plaintiffs claimed they were mere bystanders, attending as observers in their EEO capacities. Defendant said they were active participants, and adduced testimony to that effect. The magistrate found they were not bystanders and observers, but were active participants, and were discharged because of it. The reason given for the discharges was not their opposition to the unlawful employment practices then rife, as we assume, but their manner of opposition.

The magistrate concluded that the case law interpreting the statute left the stated activity open to “case by case” interpretation, and on balance he concluded that the activity was not “protected.” He conceded plaintiffs’ right to express grievances and' even, at times, to demonstrate in areas not always of the employers’ choosing. But the circumstances here swing the balance for defendant. These included that the involved facility was both military and medical, on both grounds requiring less deviance from routine and greater freedom from disruption than other business. The time and place of the demonstration were significant. General Moncrief had told plaintiff Pendleton that he could not condone a demonstration in the food division that could disrupt the feeding of patients. Ms. Pendleton so told Ms. Martin. Nevertheless, they participated.

The magistrate does not present his findings of fact and rulings of law separately, in the manner so helpful to appellate reviewers; they are commingled in a single memorandum. Thus buried in his legal discussion is the ultimate factual conclusion, which is that the reason for General Moncrief’s action, as summarized above “the court does not find to be a pretext.” This really says it all. It involves looking into General Moncrief’s mind — though possibly with the benefit of information he should have had but did not, owing to the haste in which he acted — and holding that the alleged reason was the true reason. If plaintiffs were fired for the improper manner of their opposition to racial malpractice at WRAMC, not the opposition itself, then the statute does not by its terms apply.

The magistrate never refers to a matter which, in our view, is quite correctly stressed by the parties, the actual duties of the plaintiffs as EEO Counselors. Their attorney seems to see no real difference between such duties and those of e. g., an officer of an organization of black employees, formed to resist discrimination, or of a union of such employees. Defendant relies heavily on the statement that a Counselor must be a “bridge” between grievants and management. EEO Counseling, supra, 5-1, 6-1, CPR § 713.2e. Other passages are even more telling. Section 6-3 exhorts Counselors to understand the differences in people, and, 6-4, the background of behavior. This would include the behavior of generals. Section 6-11 is entitled Working with Managers, and deals with the necessity of getting the side of the story believed by managers and supervisors, to convince them that “you [the Counselor] are neutral * to show them how “you” can help them, and relieve them of their fear “you” are undermining them both with top management and with their employees. Section 7-3 is captioned Understanding Management’s Problems and discusses at length the need to understand management problems, e. g., budget and manpower ceilings, that might have an impact on claims of racial or sex discrimination. After talking over the grievance with the grievant and the supervisor, the Counselor must “make a judgment concerning the matter and attempt to facilitate an acceptable resolution.” CPR § 713.2e(5)(b).

Plaintiffs and the dissent point to provisions stating that EEO Counselors should possess a “knowledge and awareness of minority groups’ background, traits, customs and/or language,” CPR § 713.2e(5)(a), and should be persons “on whom employees rely to add credibility to the system.” Manual at 5-2. Such requirements may have led to a search for militant types of EEO Counselors, or at least a tolerance of militancy, but this made all the more needful some adjustment in the behavior of a Counselor, once selected, to reflect the responsibilities of at least a quasi-member of the management team. The Supreme Court has recently stated, in another context, that an employer is entitled to the “undivided loyalty” of its representatives. National Labor Relations Board v. Yeshiwa University, 444 U.S. 672, 100 S.Ct. 856, 63 L.Ed.2d 115 (1980). Plaintiffs’ roles perhaps were conceived as dual, they represented by General Moncrief and the employee grievants, to counsel and negotiate informal settlement of grievances without going over the heads of middle management. General Moncrief, as the spokesman for the employer, the United States, was entitled to the amount of loyalty specified in the Manual, at least.

In determining the limits of protected activity, “The requirements of the job and the tolerable limits of conduct in a particular setting must be explored.” Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222, 231 (1st Cir. 1976) (emphasis supplied). It seems fairly obvious that a reasonable person in General Moncrief’s position might, on learning of the plaintiffs’ parts in the demonstration, have felt that they had fatally compromised their ability to gain the confidence of middle management, as spelled out in the Handbook, and that they were lacking in ability to appreciate management’s point of view or see the facts as management saw them. It would not matter whether the General and the plaintiffs were actually familiar with the contents of the Handbook, because these are the requirements of the job, as any person of common sense would perceive. Without the confidence of middle management, a Counselor would be useless to top management, because he or she, having no authority to order anything done, could not forestall formal grievance cases and get grievances settled early and at low levels of authority. The attorney for plaintiffs overlooks that the right kind of Counselor, the kind the Handbook advocates, would not be just a gadfly to management, like a union representative, but would be a help to management. The private settlement of grievances is a purpose of the Act. Hochstadt v. Worcester Foundation, supra, at 233.

If plaintiffs could not get grievances settled without involving top management, their merely reporting to top management the grievant’s version of the case would be useless. It would not serve to forestall, as here, unwelcome demonstrations that served further to polarize the parties. Top management would have to intervene, to get diverted from the many other problems incident to running a great medical center, and deprive middle management of the credit of being able to manage their own employee relations. Plaintiffs’ version of the EEO Counselor’s “bridge” function as being simply to convey employee grievances to management, as a recognized union official might do, or as plaintiff Pendleton had been doing before being appointed EEO Counselor, simply will not survive a fair and careful reading of the Handbook, and grossly underrates the significance of the job.

In our view, differing from what we suppose was the magistrate’s, by his silence on the subject, the problem before us for resolution really has the duties of an EEO Counselor as its most significant element. The decision to remove any employee must be made primarily in light of that employee’s duties. A question of retaliation is not raised by a removal for conduct inconsistent with those duties, unless its use as a mere pretext is clear. Whether the participation of any employee not an EEO Counselor in the demonstration would be “protected activity” is an issue not before us for resolution, and, as to which we express no opinion. No case has been cited to us wherein what is “protected activity” in the instance of an EEO Counselor is decided. We do not see any useful purpose served in turning over decisions dealing with “protected activity” in other contexts.

The dissent, like the plaintiffs’ brief, cites a good deal of testimony inconsistent with the magistrate’s findings, testimony which he apparently disbelieved. We think the plaintiffs, by failing to attack the findings in the time and manner provided by law, before the District Judge adopted them, as well as their failure to recognize the impact of the “clearly erroneous” test and to be specific as to when the magistrate went wrong, preclude such use of the testimony here. Moreover, the dissent fails as plaintiffs do to appreciate the full scope and meaning of the EEO Counselor’s job.

Accordingly, the order and judgment appealed from are

Affirmed.