Petition — Falkowski v. Perry

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IN THE | SEEL RODAK, JF MEERA |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

—¥%9-1244

No.

EVELYN FALKOWSKI,

Petitioner,

Vv.

LOWELL PERRY, et al.,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondents.

BERTRAM PERRY,

Respondent,

ALVIN GOLUB, et al.,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondents,

and

EVELYN FALKOWSKI,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

OweEN E. PERRY

3000 Town Center

Suit 2121

Southfield, Michigan 488075

(313) 358-0004

Attorney for Evelyn Falkowski

Washington D.C «+ THIEL PRESS «+ (202) 638-4521

oy ee

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TABLE OF CONTENTS

Fage

EE 2

Be Matha a a & A wwe a 2

Te eee eee 3

er 3

REASONS FOR GRANTING THE WRIT............. 5

I. The Court of Appeals by Implication Distinguishes

Between the Collateral Consequences of Criminal

Convictions and Findings of Criminal Activity in

a Civil Case Which Indicates the Law Is Unsettled ..... 5

II. Due Process Required That the Court of Appeals

Either Review the District Court Findings, or at

Minimum, Summarily Reverse These Findings To

Restore the Status Quo Ante and Preserve Peti-

er Se i a wk tect ee 9

EE EL 11

APPENDICES A through M......... Index follows Petition

TABLE OF AUTHORITIES

Cases:

Baltimore and Ohio Railroad Co. v. Anchor Coal Com-

es re et te tt we 10

Berger v. United States, 255 U.S. 22, 35-36 (1921) ....... 9

Connell v. Shoemaker, 555 F.2d 483 (5th Cir. a 6,7

Falkowski v. Lowell Perry, 464 F. Supp. 1016, N.D.

RE EIS ST SC 29.4

Ginsberg v. State of New York, 390 U.S. 576 ee 5

Nicodemus v. Chrysler, 596 F.2d 152, 155 (6th Cir.

Tr ee ge se ec ee ew ew 9

Perry v. Falkowski, C.A. 78-M-0935 (pending) ....4,5,7, 8,9

Perry v. Golub, 464 F. Supp. 1016, N.D. Ala. (1978)

Sibron v. State of New York, 392 U.S. 40, 57 (1968)

(ii)

St. Louis-San Francisco Railway Co. v. Railroad Yard

Masters of America, 347 F.2d 983 (5th Cir. 1965) ...... 9

Street v. New York, 394 U.S. 576 (1969) .............. 5

South Spring Hill Gold Mining Co. v. Amador Gold

Mening Co., 145 U.S. $00 (1892)... ec ee es 10

United States v. Hamburg-American S.S. Co., 239 U.S.

OR ee ae as aka abe e Ge Aldo has 10

United States v. Schrimsher, 493 F.2d 842 (5th Cir.

tc, CERT ES ee ee, We ee Oe ee ee 6,7, 8

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

EVELYN FALKOWSKI,

Petitioner,

LOWELL PERRY, et al.,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondents.

BERTRAM PERRY,

Respondent,

ALVIN GOLUB, et al.,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondents,

and

EVELYN FALKOWSKI,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Evelyn Falkowski petitions for a writ of certiorari

to review the judgments of the United States Court of

Appeals for the Fifth Circuit in this case.

]

OPINIONS BELOW

The opinion of the court of appeals of July 25, 1979

is unpublished, and appears at Petitioner’s Appendix B,

and the court of appeals decision of October 24, 1979

denying rehearing appears at Petitioner’s Appendix A.

The opinion of the district court of November 21, 1978

is reported at 464 F. Supp. 1016 and appears at Peti-

tioner’s Appendix C. Related opinions in these consoli-

dated cases include a district court opinion of September

11, 1975 reported at 400 F. Supp. 409 and appearing at

Petitioner’s Appendix K, a district court opinion of

November 30, 1976 reported at 74 F.R.D. 360 and

appearing at Petitioner’s Appendix F, an unpublished

court of appeals opinion of April 25, 1979 appearing at

Petitioner’s Appendix E, and an unpublished court of

appeals opinion of May 29, 1979 appearing at Peti-

tioner’s Appendix D.

In Perry v. Golub, et al., the defendants, at the time

of filing, included Alvin Golub and Donald L. Hollowell,

then, respectively, the Acting Executive Director and

Southeastern Regional Director of the Equal Employ-

ment Opportunity Commission (EEOC), and the Peti-

tioner. In Falkowski v. Lowell Perry, et al., Lowell

Perry was the then Chairman of the EEOC, and the other

defendants include the Commissioners and other officials

in the chain of command of the EEOC.

JURISDICTION

The judgment of the court of appeals (Pet. App. A)

denying rehearing was entered on October 24, 1979.

On January 9, 1980, Mr. Justice Powell extended the

time for filing a petition for a writ of certiorari to and

including February 11, 1980. The jurisdiction of this

court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Since this court has established that a criminal case

is moot only if it is shown that there is no possibility

that any collateral !egal consequences will be imposed on

the basis of the challenged conviction, Sibron v. State

of New York, 392 U.S. 40, 57 (1968), can Petitioner

be denied appellate review of district court findings

imputing criminal activity to her in a civil case deter-

mined otherwise to be moot, unless the court of appeals

also makes a determination that no collateral legal

consequences will be imposed on the basis of those

findings?

2. When the court of appeals summarily disposed of

Petitioner’s appeal as moot, did minimum due process

requirements dictate that the court of appeals also

summarily reverse all findings adverse to Petitioner for

the purpose of restoring the status quo ante to protect

Petitioner from collateral estoppel in related pending

litigation and to mitigate other adverse collateral conse-

quences to Petitioner?

STATEMENT

Perry v. Golub was commenced under 28 U.S.C.

§§ 1343, 2202, 5 U.S.C. §§ 701, 706; 42 U.S.C. §§ 1981,

1985 and 1986 and the First Amendment to the U.S.

Constitution.

Falkowski v. Lowell Perry was commenced under 28

U.S.C. §§ 1343 and 1361; 5 U.S.C. §§ 702 and 704; 42

U.S.C. 2000(e) et seq:; 42 U.S.C. §§ 1981, 1983 and

1985.

After the 1975 decision in Perry v. Golub (Petitioner’s

Appendix K), Petitioner was involuntarily dismissed as a

defendant on Respondent Bertram Perry’s motion (Pet.

App. G). When Petitioner filed Falkowski v. Lowell

Perry, the cases were consolidated.

The district court opinion (Pet. App. C) resulted from

petitions by the Respondent EEOC to transfer Petitioner

and Respondent Bertram, Perry from the Birmingham

District Office (BIDO) of the EEOC. After consolidated

hearings, the district court entered findings that Bertram

Perry was a “whistle blower” for having brought to the

attention of the U.S. attorney and others irregularities

and mismanagement that imputed criminal activity to

Petitioner.

There has never been a trial on the merits or a full

evidentiary hearing in either case.

The district court entered orders granting EEOC’s

petition as to Petitioner but not as to Bertram Perry.

Petitioner was promptly demoted and transferred to

Washington, D.C.

The court of appeals, in summary disposition of the

appeal, limited its action to merely vacating the district

court’s orders on the grounds that the case was moot.

It did not review the findings against Petitioner nor did

it order that these findings be reversed to restore the

status quo ante. It left the findings undisturbed exposing

Petitioner to collateral estoppel in related pending

litigation.

Petitioner has been sued by Bertram Perry in a jury

case, Perry v. Falkowski, et al., Civil Action No. 78-M-~

0935-S; pending in the same district court seeking an

award of damages against Petitioner based on the findings

against Petitioner in the case at bar. Bertram Perry has

indicated his intention to collaterally support his claims

in Perry v. Falkowski, et al. with the findings made in

the case at bar.

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS BY IMPLICATION

DISTINGUISHES BETWEEN THE COLLATERAL

CONSEQUENCES OF CRIMINAL CONVICTIONS

AND FINDINGS OF CRIMINAL ACTIVITY IN A

CIVIL CASE WHICH INDICATES THE LAW IS

UNSETTLED.

In a series of cases, this court has established that a

criminal case can be considered moot for purpose of

appellate review only if it is shown that there is no

possibility that any collateral legal consequences will

be imposed on the basis of the challenged conviction.

Sibron v. State of New York, 392 U.S. 40, 57 (1968);

Street v. New York, 394 U.S. 576 (1969); Ginsberg v.

State of New York, 390 U.S. 629 (1968). These cases

negated mootness even though sentence had been served

because of collateral legal consequences, such as the use

of the conviction to impeach character, impairment of

credibility as a witness or party in future litigation, civil

or criminal, the impairment of the ability to keep or

obtain a license to conduct a chosen business, or to be

employed in a chosen field.

A delay in determining the effects should be avoided,

Sibron, 393 U.S. at 56, 57:

. the sooner the issue is fully litigated the better

for all concerned. It is always preferable to litigate

a matter when it is directly and principally in

dispute, rather than in a proceeding where it is

collateral to the central controversy. Moreover,

litigation is better conducted when the dispute is

fresh and additional facts may, if necessary, be

taken without a substantial risk that witnesses will

die or memories fade. And it is far better to elimi-

nate the source of a potential legal disability than to

require the citizen to suffer the possibly unjustified

consequences of the disability itself for an indefinite

period of time before he can secure adjudication of

the State’s right to impose it on the basis of some

past action.

In the case at bar, the district court has made findings

(Pet. App. C, pp. 7a, 15a-18a, and Pet App. K, pp. 59a-

69a, 76a) imputing criminal conduct to Petitioner in a

civil case. The court of appeals (Pet. App. B) has left

these findings undisturbed.

The court of appeals declined to apply, to the case at

bar, the principles of its prior decisions in Connell v.

Shoemaker, 555 F.2d 483 (5th Cir. 1977), and United

States v. Schrimsher (In re Butts), 493 F.2d 842 (5th

Cir. 1974). In Connell, the U.S. Army determined that

a complaint of racial discrimination in housing had been

sustained with respect to certain rental apartments and

sanctioned the owner by prohibiting military personnel

stationed at Fort Hood from entering leases for his apart-

ments for a period of 180 days. The owner, Connell,

filed suit, but when the 180 day period expired, the

district court dismissed the case as moot. The court of

appeals reversed, 555 F.2d at 486:

- we view the continuing practical consequences

of the Army’s determination of discrimination as

sufficient to negate mootness. Appellants have

interests in various businesses engaged in retail sales

of goods and services directly to the public in the

area adjacent to Fort Hood. Since a favorable

public image is vital to the success of such enter-

prises, the imputation of bigotry implicit in the

Army's widely publicized sanctions against Appel-

lant could not but harm their reputations and,

concomitantly, their livelihoods with clientele both

black and white. Additionally, Appellant Ted

Connell has various local, civil and elective political

positions; whatever such aspirations he might yet

harbor have almost certainly been undercut by the

same stigma.

The court in Connell also discussed its prior decision

in Schrimsher, supra, in which a lawyer was summarily

sentenced for criminal contempt to confinement in jail

for 1% hours during a trial. In Schrimsher, the court

ruled that the existence of potential collateral conse-

quences, such as the possibility of harm to the attomey’s

practice of law and to his opportunities for appointment

to the bench or election to political office are sufficient

reasons to negate mootness. The court stated ‘‘Although

the present case [Connell] does not involve a criminal

conviction, we view the collateral consequences in the

two cases as analogous.”

In the case at bar, the court of appeals, by implication

or default, distinguishes between cases where a person

has been convicted of criminal activity, and civil cases in

which a party is found to be guilty of criminal conduct.

The law appears to be unsettled, insofar as the court of

appeals below is concerned, although Petitioner finds it

difficult to distinguish the collateral legal and practical

consequences imposed on Petitioner by the district

court findings from those found to exist in Connell and

Schrimsher.

Immediate collateral legal consequences will be faced

by Petitioner in Perry v. Falkowshki, et al., supra, pending

in the same district court. Petitioner is faced with the

immediate problem of whether the findings of criminal

conduct on her part in the case at bar can be used as

evidence in Perry v. Falkowski, et al. either to rebut

character evidence adduced by Petitioner, for impeach-

ment, to establish facts, or to raise presumptions or

inferences adverse to Petitioner.

Furthermore, Petitioner is a lawyer, and is exposed to

the same or greater disabilities than those that concerned

the court in Schrimsher. She has been found by the

district court, to be guilty, not of contempt, but of

crimes of moral turpitude—of purposely failing concilia-

tion of cases in order to increase the business of attorneys

friendly to her. She has had a distinguished career as an

administrator with EEOC, but the findings below have

resulted in her demotion and transfer.

Petitioner is also faced with adverse collateral conse-

quences from the gratuitous references in the opinion to

Petitioner as “a raving maniac” and a “wild screaming

woman in a fit of hysteria” (Pet. App. C, pp. 13a-14a).

Indeed, Petitioner and her family, long-time residents of

Birmingham, have already been subjected to public scorn

and ridicule by the front page publicity given to the

district court opinion.! The official reports of the

decision stand as a barrier to further assignment of

lThe Birmingham News, November 22, 1978 carried a front

page headline “U.S. Judge: EEOC Retaliated Against City ‘Whistle

Blower’ and Ignored Incompetence”’.

The ensuing article then quoted at length from the district

court’s opinion (Pet. App. C, pg. 7a) stating that Bertram Perry

was found to be a whistle blower for exposing irregularities in the

Birmingham office to the U.S. Attorney, that the court said

EEOC may seek disciplinary action and try to transfer the director

of the Birmingham office, Mrs. Evelyn Falkowski, that the “order

characterizes some of her behavior as ‘the fit of a raving maniac,”

and quotes the district judge: “It is frightening to think that the

Civil Service Board would discipline an employee for countermand-

ing the orders of a wild, screaming woman in a fit of hysteria.”

Petitioner as an administrator, or to any promotion. Her

ability to successfully litigate the related case, Perry uv.

Falkowshi, et al., has been impaired; she will stand before

the jury judicially branded as a “raving maniac” and a

“wild screaming woman”.?

DUE PROCESS REQUIRED THAT THE COURT

OF APPEALS EITHER REVIEW THE DISTRICT

COURT FINDINGS, OR AT MINIMUM, SUMMAR-

ILY REVERSE THESE FINDINGS TO RESTORE

THE STATUS QUO ANTE AND PRESERVE PETI-

TIONER’S RIGHTS.

An appellate court determination that a case is moot

requiring dismissal of lower court judgments, without

more, does not suggest that the appellate court deter-

mines the propriety of findings made by the lower court,

St. Louts-San Francisco Railway Co. v. Railroad Yard

Masters of America, 347 F.2d 983 (5th Cir. 1965).

In disposing of lower court judgments of a case

considered moot, the appellate court should determine

what its order with respect to the district court opinion

should be on the basis of “what will ‘be most consonant

to justice’ in view of the conditions and circumstances

?This court has firmly established that appellate courts be

particularly sensitive to suggestions of lack of impartiality. Berger

v. United States, 255 U.S. 22, 35-36 (1921):

‘“. .. [T]ribunals of the country shall not only be impartial in

the controversies submitted to them but shall give assurance

that they are impartial ... .”

The sixth circuit court of appeals recognized this principle recently

in reversing a district court opinion because the district judge used

language against one of the parties which is mild in comparison to

that used in the case at bar. Nicodemus v. Chrysler, 596 F.2d 152,

155 (6th Cir. 1979).

of the particular case,’ United States v. Hamburg-

American S.S. Co., 239 U.S. 466, 478 (1915).

When a case on appeal has become moot, the action

of the appellate court must “dispose of the cause, not

merely of the appellate proceedings which brought it

here’, Baltimore and Ohio Railroad Co. v. Anchor Coal

Company, 279 U.S. 812 (1928). Even though a case has

become moot, the judgment of the district court must

be reversed and remanded to allow further proceedings

if necessary to preserve the rights of all interested parties,

South Sprng Hill Gold Mining Co. v. Amador Gold

Mining Co., 145 U.S. 300 (1892).

Fairness requires that, at minimum, an appellate

court’s order with respect to a moot case restore the

status quo to preserve the rights of the parties. Funda-

mental principles of due process require that a court

of appeals either subject findings adverse to a party to

appellate review on the merits, or at least summarily

reverse any such findings, without prejudice, to preserve

the rights of the parties. It is fundamentally unfair to

shield findings of criminal activity from both appellate

review and summary reversal by a determination that the

case is moot.

CONCLUSION

This Petition should be granted for the reasons speci-

fied in Rule 19(1)(b) of this court.

Respectfully submitted,

OwEN E. PERRY

3000 Town Center

Suit 212]

Southfield, Michigan 488075

(313) 358-0004

Attorney for Evelyn Falkowski

APPENDIX

(7)

Petitioner’s Appendix

TABLE OF CONTENTS

Appendix A: Denial of Rehearing, October 24, 1979,

U.S. Court of Appeals, Fifth Circuit: Falkowski v.

Lowell Perry and Perry v. Golub .............05.

Appendix B: Decision (unpublished) July 25, 1979, U.S.

Court of Appeals, Fifth Circuit, vacating district court

opinion to extent lower court enjoined EEOC .......

Appendix C: Decision (464 F. Supp. 1016) November

21, 1978, United States District Court of the Northern

District of Alabama, S.D. pursuant to retention of

jurisdiction in Falkowski v. Lowell Perry and Perry v.

Golub, previously dismissed as moot without full evi-

dentiary hearings (Apps. F and I) ws.............

Appendix D: Denial of Rehearing, May 29, 1979, U.S.

Court of Appeals, Fifth Circuit, on Decision Affirming

Mootness and Vacating Retention of Jurisdiction by

CE EIR DB LM gs ae Oe ne en

Appendix E: Decision (unpublished) April 25, 1979, U.S.

Court of Appeals, Fifth Circuit, vacating underlying

proceedings and retentions of jurisdiction (prior to

hearing appeal on decision referenced in Appendix C)

in Perry v. Golub and Falkowski v. Lowell Perry .....

Appendix F: Decision (74 Federal Rules Decisions 360)

November 30, 1976, U.S. District Court, Northern

District of Alabama, S.D., in Perry v. Golub (enjoin-

ing EEOC from the action against Perry, sanctioning

EEOC, and dismissing case as moot without full

I ole ee ase bye Se Cale

Appendix G: Order entered November 23, 1976, by the

U.S. District Court, Northern District of Alabama,

dismissing Falkowski as a party in Perry v. Golub

ai as ele wa Miere Aa) b'e wa ees

Appendix H: Denial of Motion to Reconsider, J anu-

ary 14, 1977, dismissal of Evelyn Falkowski as

a party defendant in Perry v. Golub, by US.

Ra i FRA ee gr ee

(ii) la

Page

Appendix I: Decision (unpublished) November 30, 1976, ca APPENDIX A

U.S. District Court of the Northern District of Ala-

bama, S.D., dismissing Falkowski v. Lowell Perry as UNITED STATES COURT OF APPEALS

moot, without full evidentiary hearing ......7°...... 52a FIFTH CIRCUIT

Appendix J: Order of April 1, 1977, U.S. District Court

of the Northern District of Alabama, S.D., granting

OFFICE OF THE CLERK

ree >

Falkowski motion and retaining jurisdiction in Fa/- October 24, 1979

kowski v. Lowell Perry, as done in Perry v. Golub Tel. 504-589-6514

at time of November 30, 1976 decisions (Apps. Gilbert F. Ganucheau 600 Camp Street

fet REE TR PO ee Gg et ee oe 56a Clerk New Orleans, La. 70130

Appendix K: Preliminary Hearing Findings of Fact and (Filed: Oct. 29, 1979]

Conclusions of Law, entered September 11, 1975, by

U.S. District Court of the Northern District of Ala- TO ALL PARTIES LISTED BELOW:

bama, S.D. in Perry v. Golub, published 400 F. Supp.

411 PE 2 ee Se Ee Cee, eat as ee a ee 58a No. 78-3716—Evelyn Falkowski Vv. Lowell Perry, et al.

Appendix L: Consent Order entered September 9, 1974,

in Falkowski v. EEOC, CA No. 73P 1109 (Evelyn Fal- a ee

kowski vs. John H. Powell, Jr., Chairman, Equal Em- a ;

ployment Opportunity Commission) .............. 8la This is to advise that an order has this day been entered

Appendix M: Constitutional and Statutory Provisions denying the petitioner ( ) for rehearing, and no member

Involved: of the panel nor Judge in regular active service on the

Amendments I and V, U.S. Constitution. ......... 83a Court having requested that the Court be polled on

Section 1981, Civil Rights Act of 1866, U.S.C. rehearing en banc (Rule 35, Federal Rules of Appellate

Bk Pe iy tre oo hs Sait 83a Procedure; Local Fifth Circuit Rule 16) the petition( )

Title VII, Civil Rights Act of 1964, as amended for rehearing en banc has also been denied.

in 1972, Sections 703, 704, and 717, U.S.C. See Rule 41, Federal Rules of Appellate Procedure

Title 42, 2000e-2(a), 3(a), and 16(a) and (c). for ; d stay of the mandate

(Amendment providing recourse to federal em- ee ee ;

ployets unter Tithe VIR) os kc ee 84a Very truly yours,

Gilbert F. Ganucheau, Clerk

cc: Ms. Margaret A. Beller By /s/ Sally Hayward

Ms. Evelyn Falkowski Deputy Clerk

Mr. Owen E. Perry

Ms. Vella M. Fink

Mr. William F. Gardner

APPENDIX B

DO NOT PUBLISH

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-3716

Summary Calendar *

EVELYN FALKOWSKI,

Plaintiff-Appfellant,

LOWELL PERRY, ETC., ET AL.,

Defendants-A ppellees,

* * *

BERTRAM PERRY,

Plaintiff-Appellee,

ALVIN GOLUB, ET AL.,

Defendants-Appellees-Appellants,

and

EVELYN FALKOWSKI,

Defendant-Appellant.

*Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty

Co. of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I.

Appeals from the United States District Court

for the Northern District of Alabama

July 25, 1979

Before CLARK, GEE and HILL, Circuit Judges.

PER CURIAM:

A brief recital of the underlying facts in these con-

solidated cases will facilitate an understanding of the

disposition of the appeal before us.

Mrs. Falkowski was the District Director of the Jack-

son, Mississippi, District Office of the Equal Employment

Opportunity Commission (EEOC) before November 4,

1974. Unable to secure a lateral transfer to the Birming-

ham, Alabama, District Office (BIDO), she filed suit

against her employer, alleging discrimination. That case

was amicably settled, the EEOC agreeing to give serious

consideration to Mrs. Falkowski’s application for transfer,

and a consent decree consistent with the agreement was

entered. As a result of that agreement and consent

decree, Mrs. Falkowski was, on November 4, 1974, trans-

ferred to her present position as District Director of the

BIDO.

On Apmil 19, 1976, however, Mrs. Falkowski filed an

action alleging that the defendants had failed to abide

by the consent decree and were retaliating against her for

bringing the prior action by refusing her the administra-

tive support that was necessary for her to operate the

BIDO effectively. On November 30, 1976, the district

court dismissed the complaint without prejudice on

account of mootness, but retained jurisdiction of the case

so that any proposal to remove Mrs. Falkowski from her

position required approval upon petition to the district

court.

Mr. Perry has been with the BIDO since 1968 and has

been Deputy Director of that office since 1972. On

August 15, 1975, Mr. Perry received notice that he was

being ‘‘detailed” to Washington, D.C., effective August

25, 1975. He brought an action on August 18, 1975,

seeking to enjoin the detail.’ The district court issued a

preliminary injunction prohibiting the defendants from

removing Mr. Perry from his position, based upon a

finding that the “detail” was initiated largely as a result

of the EEOC’s attempts to suppress Mr. Perry’s continual

and outspoken protests of the BIDO’s mismanagement

and that the proposed “detail” was, in reality, a transfer

from the BIDO. Perry v. Golub, 400 F.Supp. 409 (N.D.

Ala. 1975). The preliminary injunction was dissolved

on November 30, 1976, before the case was tried, on

account of mootness, there then being no attempt to

transfer Mr. Perry. The district court retained jurisdic-

tion of the case to protect Mr. Perry from retaliation so

that any attempt to remove Mr. Perry from his position

required approval upon petition to the district court.

Perry v. Golub, 74 F.R.D. 360 (N.D. Ala. 1976).

The conflict in the BIDO between Mrs. Falkowski and

Mr. Perry raged on, however, and on November py BOE de

seeking to process adverse action against both Mrs.

Falkowski and Mr. Perry, the EEOC filed petitions with

the district court, requesting permission to process

adverse action against the complainants or, in the alterna-

tive, dissolution of the injunction. The district court

denied the application to sanction Mr. Perry and granted

the petition to sanction Mrs. Falkowski, thus holding

that adverse action against Mr. Perry without the district

court’s approval would violate the terms of the earlier

order.

In the meantime, the EEOC had filed an appeal from

the earlier order. On April 25, 1979, a panel for this

Court decided that appeal. The decision affirmed the

district court’s initial dismissal of Mrs. Falkowski’s and

Mr. Perry’s actions without prejudice on account of

mootness and specifically held that the other orders,

including the orders requiring the EEOC to seek the

court’s permission before altering the status of the com-

plaining parties, were void for want of jurisdiction.

The appeal before us now is from the orders issued in

response to petitions which were apparently required by

void orders. To the extent that the district court’s

orders, the subjects of this appeal, may be construed as

orders continuing the injunctive features of the void

orders of November 30, 1976, those judgments are

summarily vacated.

VACATED.

APPENDIX C

UNITED STATES DISTRICT COURT

N.D. ALABAMA, S.D.

Civ. A. Nos. 76-G-0545-S,

75-G-1476-S

Evelyn FALKOWSKI,

Plaintiff,

Lowell PERRY, Chairman of the

Equal Employment Opportunity Commission, et al.,

Plaintiff,

Nov. 21, 1978 v.

Alvin GOLUB, et ai.,

MEMORANDUM OPINION

GUIN, District Judge.

These consolidated cases are before the court on de-

fendants’ amended petitions for approval to propose to

the Civil Service Board that adverse action be taken

against plaintiffs. Plaintiff Falkowski is the Director of

the Birmingham District Office of the Equal Employment

Opportunity Commission (BIDO). Plaintiff Perry is the

Deputy Director of that office. Defendants are officials

of the Equal Employment Opportunity Commission

(EEOC).

Mrs. Falkowski, before-November 4, 1974, was the

District Director of the Jackson, Mississippi, District Of-

fice. Unable to get a lateral transfer to Birmingham, she

filed suit against her employer, alleging sex discrimina-

tion. That case was amicably settled, the EEOC agreeing

to give serious consideration to Mrs. Falkowski’s applica-

tion for transfer, and a consent decree consistent with the

agreement was entered. As a result of that agreement and

the consent decree, Mrs. Falkowski was, on November 4.

1974, transferred to her present position as District

Director of the BIDO.

The peace thus made was short lived. On April 19,

1976, Mrs. Falkowski filed the present action alleging

that defendants had failed to abide by the consent decree

and were retaliating against her for bringing the prior ac-

tion, by failing to give her the administrative support that

she required to run the BIDO effectively. By this court’s

order and an amendment thereto, the complaint was dis-

missed without prejudice, the court retaining jurisdiction

of the case so that any proposal to remove Mrs. Falkow-

ski from her position must be approved upon petition to

this court.

Mr. Perry has been with the BIDO since 1968 and has

been Deputy Director of that office since 1972. On Aug-

ust 15, 1975, Mr. Perry received notice that he was being

“detailed” to Washington, D.C., effective August 25,

1975, ten days later. He then brought this action on

August 18, 1975, seeking to enjoin the detail. At the pre-

liminary injunction hearing, he established that the “‘de-

tail” was initiated largely as a result of the EEOC’s at-

tempts to suppress his continual and outspoken protests

of the BIDO’s mismanagement, made to the Regional

Director, the U.S. Attorney, and members of the public.

The proposed “detail” was found to be, in reality, a

transfer from the BIDO. Mr. Perry would have worked in

Washington temporarily, but would have returned to

work in an office other than the BIDO. Accordingly, this

court issued a preliminary injunction prohibiting defend.

ants from removing Mr. Perry from his position. Perry i

Golub, 400 F. Supp. 409 (N.D. Ala. 1975).

Before the case was tried, defendants petitioned for

dissolution of the preliminary injunction and for permis-

sion to process adverse action against Mr. Perry. The peti-

tion was stricken for defendants’ failure to comply with

discovery orders. The preliminary injunction, however,

was dissolved because there was no reason for its con-

tinued effect, there then being no attempt to transfer Mr.

Perry. The court retained jurisdiction of the case to pro-

tect Mr. Perry from retaliation to the extent that any at-

tempt to remove Mr. Perry from his position must be

approved upon petition to this court. Perry v. Golub, 74 «

F.R.D. 360 (N.D. Ala. 1976).

On November 7, 1977, the defendants filed petitions

to proceed against both plaintiffs before the Civil Service

Board, there to seek their removal. Defendants later

amended their petitions to pray for permission to seek

plaintiffs’ mere transfers to Washington to jobs with less

prestige and responsibility but with the same pay. The

issue before the court in both cases, thus, is whether the

proposed adverse actions are motivated by retaliation.

The present actions are the culmination of a long-

standing feud between Mrs. Falkowski and Mr. Perry. For

almost fou. years, they have cursed, slandered, pushed,

backbitten, and thrown wads of paper at one another.

They have quarreled frequently in the presence of the

public, charging parties, and employees of the BIDO.

The proposed notice of Mr. Perry’s removal enumer-

ates six reasons and sixteen specifications; that of Mrs.

Falkowski’s removal, twelve reasons and forty-one speci-

fications. The charges against Mr. Perry are based prin-

cipally upon his feuding with Mrs. Falkowski. The char-

ges against Mrs. Falkowski are based upon her feuding

with Mr. Perry and on her mismanagement of the BIDO.

Both plaintiffs are charged with improprieties regard-

ing two principal confrontations. One occurred about

4:20 P.M. on July 18, 1977; the other at about 2:00 P.M.

on October 17 of that year.

Mr. Perry had, on July 15, 1977, reprimanded an em-

ployee. On July 18, Mrs. Falkowski had a letter to Mr.

Perry typed up criticizing his reprimand and left the let-

ter on her desk during the day in a sealed envelope with

his name on it. That afternoon, Mr. Perry saw the enve-

lope and inquired as to its contents. Mrs. Falkowski

refused to let him see it until shortly before 4:20 P.M.,

when she delivered it to his secretary. Upon reading the

letter, Mr. Perry, as expected, lost his temper. Anticipat-

ing Mr. Perry’s outrage,! and in need of material on

which to base an adverse action proceeding against Mr.

Perry, Mrs. Falkowski returned to her office, turned on a

tape recorder concealed in her purse, and awaited the

angry Perry’s arrival.

She did not wait long. Mr. Perry, as anticipated, burst

into Mrs. Falkowski’s office, uttering a scream of obscen-

ities that would curl a sailor’s hair. During the confronta-

tion, an employee approached Mrs. Falkowski’s office

and was ordered away by Mr. Perry. The verbal affrav

finally ended upon the arrival of the building security

guard.

Mr. Perry is charged with using abusive language

towards Mrs. Falkowski, engaging in the altercation, and

usurping Mrs. Falkowski’s authority in ordering the em-

ployee away from her office. Mrs. Falkowski is charged

with provoking Mr. Perry into the exchange, and with

! (Understandable and justified, under all the circumstances, in

the court’s opinion.)

10a

recording the altercation without Mr. Perry’s permission,

in violation of EEOC Order No. 165, Paragraph 6 (b).?

On October 17, 1977, Mr. Perry and some other em-

ployees were “sanitizing” copies of EEOC records, mark-

ing out and making illegible the names of charging parties

before the copies were delivered to a party to a lawsuit,

in compliance with discovery rules.

Mrs. Falkowski entered the office, assumed that Mr.

Perry and the other employees were marking out names

on the original records, and went into hysterics. Mr. Perry

tried to explain to her that the documents were not orig-

inals, but was unable to do so. Mrs. Falkowski ordered

the employees to stop marking out names and attempted

to collect the records from the employees’ desks. Mr.

Perry instructed the employees to continue the sanitizing,

countermanding Mrs. Falkowski’s instructions. Mrs. Fal-

kowski went about collecting the copies and shouting, “‘

am in charge.” She then told Mr. Pugh, a supervisor, that

she was appointing him Acting Deputy Director.

Mr. Perry is charged, in connection with this incident,

with unprofessional conduct in having participated in the

exchange. Mrs. Falkowski, for her part, is charged with

unprofessional conduct, poor judgment, and mismanage-

ment.

On july 25, 1977, Mr. Jeffrey issued written warnings

to Mr. Perry and Mrs. Falkowski. The grounds for Mr.

Perry’s warning were conduct prejudicial to the govern-

ment, the use of abusive language, and maintaining low

- “Recording of statement made in person: Manual vertaim

transcripts or the use of electronic or mechanical recording devices

in hearings, meetings, interviews, and conversations are authorized

only when advance notification is given to all participants that the

recording or transcription will occur.”

lla

morale. The grounds for Mrs. Falkowski’s warning were

conduct prejudicial to the government, indecisive leader-

ship, poor management practices, poor judgment in

communications, unwillingness or inability to interact or

relate, and maintaining low morale.

Double punishment for the same offense is violative of

the procedures set forth in the Federal Personnel Man-

ual. Under EEOC Order No. 572, revised September 20,

1976, a letter of warning is a form of discipline. There-

fore, any activities made grounds for the July 25, 1977,

letters of warning could not properly be made grounds

for the proposed adverse actions.

Though, at one point, the Federal Personnel Manual

apparently contemplates that letters of warning and ad-

verse actions may be grounded upon the same offenses,

the EEOC’s practice has been not to subject its employ-

ees to double discipline. In fact, there is only one other

case in which the EEOC has proposed adverse action on

grounds previously made the basis of other discipline.*

There, the Civil Service Commission refused to allow the

employee to be subjected to double jeopardy.

Mr. Jeffrey was notified of the confrontation of July

18, 1977, on July 21, 1977. He did not, however, learn

that Mrs. Falkowski had tape recorded the spat until mid-

August. Mr. Perry was punished for his part in the July

18 incident by the July 25 letter of warning. Mrs. Fal-

Section $3-2b (1) of that document reads, in part: “Under

the same reasoning, the Commission has found that agency adverse

actions were not warranted where the employee had been previ-

ously disciplined for the same offense.

4 Clarence Weahkee, Federal Employee Appeals Authority,

United States Civil Service Commission, Dallas Field Office, Dallas,

Texas (Decision dated May 6, 1976).

12a

kowski was not, on the other hand, punished for tape

recording the incident in violation of EEOC Order No.

165 by her July 25 letter. That letter did not purport to

be based on her illicit recording, and Mr. Jeffrey was not

even aware of the tape recording at the time he issued the

letter.

All of the grounds of the proposed adverse action were

als grounds for the July 25 letters of warning except, in

Mr. Perry’s case, those involving the October incident,

and in Mrs. Falkowski’s case, those arising from the

October incident and her tape recording of the July 18

incident. These are the only grounds, therefore, on which

adverse actions may be based.

The court finds that, though the decision to process

adverse action against Mr. Perry was motivated by retalia-

tion, the decision to proceed against Mrs. Falkowski was

not retaliatory.

Mrs. Falkowski claims that the present proposal is in

retaliation for bringing suit in 1974 to obtain a transfer

to Birmingham and for bringing the present action.

Retaliation is made an unlawful employment practice

by 42 U.S.C. §2000e-3 (a). To show that the proposed

adverse action is improper, Mrs. Falkowski would have to

show only that retaliation for engaging in protected activ-

ity was a factor in the decision to proceed against her.

United States v. Hayes International Corporation, 7

E.P.D. § 9164 (N.D. Ala. 1973), affirmed per curiam 507

F.2d 1279 (5th Cir. 1975); EEOC Compliance Manual,

Paragraph 491.5 (4). To make out a prima facie case of

retaliation, she must show that the attempted discipline

followed protected activities of which her employer was

aware, and, absent other evidence of retaliation, that the

attempted discipline followed the protected activities

13a

closely enough in time to justify the inference of retalia-

tory motivation. The burden would then shift to the

EEOC to show legitimate nondiscriminatory reasons for

the discipline. Aguirre v. Chula Vista Sanitary Service,

542 F.2d 779 (9th Cir. 1976); Grant v. Bethlehem Steel

Corporation, C.A. No. 76-Civ. 847 (S.D. N.Y. 1977);

Hochstadt v. Worchester Foundation, 425 F. Supp. 318

(D. Mass. 1976).

Mrs. Falkowski failed to make out a prima facie case.

Though she engaged in protected activity and was subse-

quently disciplined, the present adverse action did not so

closely follow her protected activity as to justify an in-

ference, without more, of causation. Neither has other

evidence established a retaliatory motive. Mrs. Falkowski

made much ado at the hearing about the EEOC’s failure

to process properly the numerous grievances she filed

against Mr. Perry. The EEOC’s shortcomings in this regard

are a mere side issue, not evidence of retaliation. The

agency acted, though not in accordance with its regula-

tions, in an understandably human way which was not in

the least retaliatory.

Even if Mrs. Falkowski had made out a prima facie

case of retaliation, still she would not have prevailed. The

reasons for the proposed adverse action are legitimate and

nondiscriminatory. Tape recording Mr. Perry’s outburst

without his permission was a clear violation of EEOC

Order No. 165. Though it may have been, at best, an at-

tempt, born of desperation and conceived of righteous-

ness, to trap her constant rival, it was yet a violation of

agency regulations which the EEOC has the right to vin-

dicate. Her behavior on October 17 is better character-

ized as the fit of a raving maniac than the reasonable re-

action of a competent district office director to a reason-

able mistake. Again, the EEOC has the right to censure

l4a

such behavior, and its attempt to do so in the instant case

is both legitimate and non-discriminatory.

Mr. Perry’s, on the other hand, is a different case. He

claims that the present petition is in retaliation for his

bringing this action and for his vocal objection to the

BIDO’s lack of management. The court agrees with him.

The only basis proposed for the adverse action against

Mr. Perry which the EEOC could technically raise is his

part in the October 17 sanitizing incident. This charge

boils down to nothing. It is frightening to think that the

Civil Service Board would discipline an employee for

countermanding the orders of a wild, screaming woman

in a fit of hysteria. The very frivolity of this charge be-

speaks the improper motivation behind it.

During the hearing on the present petitions, an offer of

proof was made of a transcript of the July 18 tape re-

cording, and the contents thereof. Mr. Perry objected to

the introduction of the evidence, and the court reserved

ruling on its admissibility. For two reasons, the court

now holds that the evidence is irrelevant to Mr. Perry’s

case, and, therefore, inadmissible: first, the EEOC may

not proceed against Mr. Perry for his part in the July 18

incident; and, second, even if the EEOC could proceed

against Mr. Perry for his part in the July 18 incident, the

tape recording and the fruits thereof would not be admis-

sible at that hearing.

Mrs. Falkowski, in taping the conversation with the

admitted purpose of obtaining evidence on which to base

an adverse action against Mr. Perry, was acting in her ca-

pacity as agent for the EEOC and in clear violation of

EEOC Order No. 165, Paragraph 6 (b). The EEOC cannot

take advantage of its own wrongdoing. The EEOC Com-

pliance Manual, §494.3, prohibits use, in its own case

15a

processing, of evidence obtained by improper means. This

principle is a sound one from which the EEOC will not be

allowed to deviate. The transcript would not be admiss-

ible against Mr. Perry at the administrative level, and is

therefore irrelevant to this petition to proceed against

him. Knoll Associates, Inc. v. FTC, 397 F.2d 530 (7th

Cir. 1968); EEOC v. Red Arrow, 392 F. Supp. 64 (E.D.

Mo. 1974).

Defendants cite United States v. Janis, 428 U.S. 433,

96S. Ct. 3021, 49 L.Ed. 2d 1046 (1976), for the general

proposition that the taint of illegal procurement does not

prevent evidence’s admissibility in a civil setting. Though

the Janis doctrine is undeniably the law, it has no appli-

cation to the present proceedings. Janis upheld a tax

assessment based on illegally seized evidence. The Su-

preme Court took pains to point out, however, that its

holding was premised on the absence of federal participa-

tion in the seizure. In the present case, however, Mrs.

Falkowski was acting in her capacity as agent for the

EEOC, providing the essential element of federal partici-

pation. The doctrine that the federal government should

not be permitted to avail itself of its own wrongdoing is

yet good law.

The evidence is overwhelming that the proposed ad-

verse action against Mr. Perry is in retaliation for the ex-

ercise of his first amendment rights.

Mr. Perry’s obtaining the preliminary injunction in the

instant case was an embarrassment to the EEOC, as well

it should have been. Mr. Golub testified to that effect and

to the effect that it was embarrassing to him persenally.

The court is impressed by the similarity of the Com-

mission’s treatment of Mr. Perry and that of one Jim

Nunes. Mr. Nunes conducted an audit of the EEOC in

l6a

which he recommended the removal of Mr. Golub. Mr.

Nunes was thereafter transferred from a field office to

the Office of Systemic Programs in headquarters in Wash-

ington. Mr. Golub testified, with unmistakable satisfac-

tion, that Mr. Nunes was a GS-14 before he was transfer-

red and has not since been promoted. Ronald Dickerson,

a supervisor in the Office of Government Employment in

headquarters, testified, in deposition, that Mr. Golub

stated that Mr. Perry was “‘aggressive or forward for a

black man.” Though Mr. Golub denied making the state-

ment, the court finds the testimony of Mr. Dickerson

more credible. The court did not hear Dickerson person-

ally, but did so hear the testimony of Golub.

The treatment Mr. Perry has received is typical of that

of instances documented in ‘The Whistle Blowers” report.

The report found that “employees who have exposed

governmental waste and abuse have been fired, trans-

ferred, reprimanded, denied promotions, riffed, or har-

rassed through the misuse of formal discipline proce-

dures.””? Though Mr. Golub testified that he decided to

remove himself from the BIDO situation, the evidence dis-

closes that his removal was more apparent than real and

raises the inference that it was he, or someone at his in-

stance, who decided to process the instant adverse action

against Mr. Perry, and that it was not Mr. Jeffrey as the

defendants would have the court believe.

The decision to process the proposed adverse actions

was based in large part upon the results of an investiga-

tion of the BIDO made by Mr. Krueger and Ms. Garcia.

°The Whistle Blowers — A Report on Federal Employees Who

Disclose Acts of Governmental Waste, Abuse and Corruption, page

1 (Senate Committee on Governmental Affairs, 95th Congress, 2nd

Session, February 1978).

17a

These two were selected by James Packwood and Cora

Dixon, Mr. Golub’s assistants. Mr. Packwood attended

the Chicago meeting at which the Krueger-Garcia investi-

gation was planned. Both Mr. Krueger and Ms. Garcia

were advised of the proposed investigation by head-

quarters in Washington, not by Mr. Jeffrey. When the in-

vestigation was complete, the report was delivered to Mr.

Jeffrey in Washington; both Packwood and Dixon were

present at the delivery. Mr. Jeffrey testified that he read

only the first of the four volumes comprising the report.

Mr. Golub, on at least one occasion, personally called Mr.

Krueger to inquire about the investigation. Mr. Golub

later presided at the May 1978 meeting where the deci-

sion to propose a transfer instead of a removal was made.

Mr. Jeffrey’s file was devoid of drafts and other materials

that would have been present had he drafted the pro-

posed adverse action. Mr. Jeffrey even testified that he

didn’t know when the decision to discharge Mr. Perry was

made and that the adverse action was typed in Washing-

ton prior to the October meeting at which Mr. Jeffrey

learned of the decision to proceed against Mr. Perry.

Further, it is undisputed that Mr. Golub issued instruc-

tions to personnel in headquarters not to inform Mr.

Perry of the activities occurring there.

It is obvious that Mr. Jeffrey did not make the decision

to proceed against Mr. Perry, and it is equally obvious

that it was Mr. Golub who made the decision. The only

plausible reason that defendants would try to hide the

origin of the proposed adverse action is that it would be

easier to hide the retaliatory motive behind it if it looked

as if it had come from Mr. Jeffrey instead of Mr. Golub.

On February 25, 1977, Maxine Cade, the Director of

EEOC’s own EEO office, issued a proposed disposition of

Mr. Perry’s complaints of discrimination and reprisal. The

18a

proposed disposition found that, while Mr. Perry had not

been discriminated against on the basis of race or sex, he

had been subjected to retaliation by the EEOC on ac-

count of his protests of mismanagment.°®

If the EEOC were concerned, as the proposed adverse

actions would indicate, with promoting the efficiency of

the service, then it would, logically, have investigated the

finding of retaliation further. Instead, the proposed deci-

sion was rescinded after what Mr. Golub’s answers to

interrogatories characterize as his ‘discussions among a

group of persons.” This was the first time in the history

of the EEOC that a proposed decision was rescinded. In

every prior case, the proposed decision was adopted as

final. The Executive Director’s Office’s review of the

decision was also novel. Despite the rescission, Ms. Cade,

on September 30, 1977, adopted the proposed disposi-

tion as the ageucy’s final decision under her authority as

director of the office and pursuant to EEOC Order No.

577, which gives her such authority. The decision was

final but a short while. On November 30, 1977, after Mr.

Perry relied upon the finding of retaliation in defense of

the present petition, headquarters withdrew the decision.

Despite the fact that the Civil Service Commission’s regu-

lations provide that an EEO complaint shall be processed

before 180 days after it is filed,’ Mr. Perry’s case before

the EEOC’s EEO office remains, to this day, unresolved.

That proposed dispositian contained the following language:

“Much of your protests regarding the definition of your duties, the

work assignments given you, and your concern about irregularities

in the Birmingham District Office are valid and are recognized as

such by the Equal Employment Opportunity Commission.” * * *

“The investigation and evidence of record shows that your protests

resulted in a decision made by a person or several persons to re-

move you from your position as Deputy Director of the Birming-

[footnote continued]

19a

By EEOC Order No. 572, each employee is to be given

an annual performance appraisal. Until Mr. Perry went to

the United States Attorney complaining of the BIDO sit-

uation, he had received outstanding appraisals each year.

From 1976 until November 1977, Mrs. Falkowski gave

him no appraisal at all. The admitted reason for this viola-

tion of procedure was to withhold potential ammunition

for the present proceedings.

One of the earmarks of retaliation is disparate treat-

ment. McDonnel Douglas Corp. v. Green, 411 U.S. 792,

93S, Ct. 1817, 36 L. Ed. 2d 668 (1973); EEOC Compli-

ance Manual §495.3. It is obvious from a review of the

EEOC’s treatment of other cases of misconduct that the

charges against Mr. Perry constitute excuses rather than

reasons. The evidence revealed that gross incompetence

and neglect of duty in the Memphis District Office was

rewarded by promotions for three of the managers re-

sponsible. Destruction of records in the Chicago District

Office to create the impression of a decreased backlog

was ignored. The Krueger-Garcia report revealed instances

of supervisor Charles Davis’s misconduct, for which Mr.

Davis received a mere “counseling memo.” These includ-

ed his shouting obscenities at Mrs. Falkowski, usurping

her authority, refusing to communicate with Mrs. Fal-

kowski, and his daring Mrs. Falkowski to do anything

ham Office.” * * * “The investigation shows that adverse actions

were taken and/or attempted against you because of your persis-

tence in making known irregularities in the Birmingham District

Office. Through your persistence you have brought into focus seri-

ous managerial problems which exist in the Birmingham District

Office and you have attempted to avail youself of remedies

through official channels. As a result you have been subjected to

many adverse actions.”

29 C.F.R. §713.220 (a).

20a

about his low productivity. Though Mr. Jeffrey grossly

misstated his educational qualifications when he filled

out his executive inventory for the EEOC, no action is

proposed regarding his misconduct, and Mr. Golub even

testified that Mr. Jeffrey had done nothing wrong.

Perry’s Exhibit 28 reveals a fifteen-day suspension of a

district director for failure to follow instructions, falsifi-

cation of records, continued falsification of records after

warning, and verbal abuse; a thirty-day suspension for fal-

sification of time cards to the tune of $4,132.27; a thirty-

day suspension for falsification of travel vouchers to the

tune of $3,747.00; a one-day suspension for assaulting a

supervisor, and so on.

The issue in a case of disparate treatment is not one of

precise equivalence in culpability but of incidence of

comparable seriousness attended by lesser discipline. Mc-

Donald v. Sante Fe Trail Transportation Co., 427 U.S.

273, 96S. Ct. 2574, 49 L. Ed. 2d 493 (1976). Clearly in-

cidents at least comparable in seriousness to those with

which Mr. Perry is charged have been met with much

lighter discipline than that proposed against Mr. Perry.

The disparate treatment indicative of retaliation is pres-

ent in Mr. Perry’s case.

The defendants’ decision to seek a mere transfer in-

stead of removal makes the proposed discipline no less

retaliatory. Apparently there is little difference in sub-

stance between the proposed transfer and removal. The

EEOC would, if permitted, transfer Mr. Perry to the Of-

fice of Systemic Programs under the direct supervision of

Mr. Golub. Mr. Perry’s proposed job description was

drafted after the defendants amended their petition to

seck a transfer instead of removal. Mr. Golub was not

even sure of the name of the position, referring to it at

first as “equal opportunity specialist”’ and later as ‘‘equal

2la

employment officer.” The job description referred to the

position sometimes as ‘equal opportunity specialist” and

sometimes as “‘special assistant.”” The duties which Mr.

Perry would assume consist of reviewing consent decrees,

and, as Mr. Golub added at the hearing, reviewing concili-

ation agreements. The function of the Office of Systemic

Programs is to attack systems of discrimination. It is ap-

parent that the duties thought up for Mr. Perry would be

only tangential to the office’s function.

The transfer would constitute a reduction in rank

under the terms of the Federal Personnel Manual because

Mr. Perry would no longer be in a supervisory position.

The EEOC would propose, thus, to waste Mr. Perry’s tal-

ents in the name of promoting the efficiency Jf the ser-

vice. What the EEOC does cannot be reconciled with

what it says. It can be reconciled only with an underlying

retaliatory motivation.

The office to which the EEOC proposes to send Mr.

Perry is not matched to his abilities, but rather to his in-

tolerance of an inefficient Commission. The office is a

depositary for dissidents, the Siberia of the jealous guard-

ians of our civil rights. Jim Nunes, the man who recom.

mended Mr. Golub’s removal, was, thereafter, transferred

to that office. Similarly, Mr. Perry would be going to

work with Marvin Rogoff, an American Federation of

Government Employees officer and outspoken critic of

EEOC management. Certainly, Mr. Golub does not want

these men under his direct supervision out of love for

them. The logical inference is that he wants these people

in positions where he can more easily silence them.

The evidence is overwhelming that the adverse action

was proposed against Mr. Perry because of his protests of

mismanagement and inefficiency, in violation of his right

to speak freely. Further, it is clear that had Mr. Perry not

22a 234

exercised his rights to protest conditions in the EEOC, | APPENDIX D

this petition would not have been filed. Mt. Healthy City

Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. IN THE

ants’ petition for persmission to process adverse action FOR THE FIFTH CIRCUIT

against Mr. Perry is due to be denied.

No. 77-1719

[Filed: May 29, 1979]

BERTRAM N. PERRY,

Plaintiff-Appellee,

Uv.

ALVIN GOLUB, Et Al.,

Defendants-Appellees,

EVELYN FALKOWSKI,

Movant-Appellant.

* * *

No. 77-1865

EVELYN FALKOWSKI,

Plaintiff-Appellant,

Cross-Appellee,

vU.

LOWELL PERRY, Chairman, ETC., EY AL.,

Defendants-A ppelices,

Cross-A ppellants.

24a

Appeals from the United States District Court

for the Northern District of Alabama

ON PETITION FOR REHEARING

(May 29, 1979)

Before WISDOM, CLARK and FAY, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby denied.

ENTERED FOR THE COURT:

/s/ John Minor Wisdom

United States Circuit Judge

25a

APPENDIX E

DO NOT PUBLISH

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-1719

BERTRAM N. PERRY,

Plaintiff-Appellee,

ALVIN GOLUB, ET AL.,

Defendants-Appellees,

EVELYN FALKOWSKI,

Movant-Appellant.

No. 77-1865

EVELYN FALKOWSKI,

Plaintiff-Appellant

Cross-A ppellee,

vU.

LOWELL PERRY, Chairman, ETC., ET AL..,

Defendants-Appellees

Cross-Appellants.

26a

Appeals from the United States District Court

for the Northern District of Alabama

(April 25, 1979)

Before WISDOM, CLARK and FAY, Circuit Judges.

PER CURIAM:

The district court correctly dismissed these actions

without prejudice on account of mootness. The effect of

such dismissals was to vacate all underlying proceedings

in each case so as to spawn no consequences. The adjudi-

cation of mootness eliminated all pending controversies

and left the court without jurisdiction to enter those

portions of the injunction orders restricting future

actions of the parties in either case. The orders of

dismissal, without prejudice, are affirmed but the “‘pro-

tective orders” or injunctions are vacated.

AFFIRMED and VACATED.

27a

APPENDIX F

BERTRAM N. PERRY,

Plaintiff,

ALVIN GOLUB, et al.,

Defendants.

Civ. A. No. 75-G-1476-S

United States District Court,

N.D. Alabama, S.D.

Nov. 30, 1976.

Employee of Equal Employment Opportunity Com-

mission brought action challenging his permanent reas-

signment, in which defendants filed a “Petition for Per-

mission to Process Adverse Action Against” plaintiff.

Plaintiff moved to dismiss or strike petition for defend-

ants’ failure to comply with order to produce documents.

The District Court, Guin, J., held that defendants’ failure

to file timely objection constituted a waiver of objection

that documents were irrelevant and privileged, that dis-

missal of the petition was an appropriate sanction for

refusal to comply with production order since, among

other things, the failure was wilful, notwithstanding con-

tention that plaintiff was not prejudiced, that dismissal

was not precluded by rule providing that a default judg-

ment may not be entered against the United States unless

the claimant establishes his right to relief by satisfactory

evidence and that although there was no longer an actual

existing controversy the court would retain jurisdiction

to protect plaintiff against recurrence of allegedly retalia-

tory actions.

ee en | ee eee

28a

Defendants’ petition dismissed; jurisdiction retained.

See also, D.C., 400 F. Supp. 409.

William F. Gardner, Cabaniss, Johnston, Gardner,

Dumas & O’Neal, Birmingham, Ala., for plaintiff.

Edward H. Levi, Atty. Gen., John J. Pagano, Office of

Gen. Counsei, Equal Employment Opportunity Commis-

sion, Washington, D.C., Joseph L. Battle, Huntsville, Ala.,

Margaret A. Beller, Washington, D.C., Edward Still, Bir-

mingham, Ala., Nicholas M. Inzeo, II, Equal Employment

Opp. Comm., Washington, D.C., for defendants.

ORDER

GUIN, District Judge.

This cause came on for hearing before the Court on

November 22, 1976 on the plaintiff's Rule 37 (b) motion

to dismiss or strike the defendants’ ‘‘Petition for Permis-

sion to Process Adverse Action Against Bertram Perry.”

At the same time, the Court has considered the question

of the extent to which there remains an actual contro-

versy in this case. Based on the factual circumstances here

present, the Court finds as follows:

RULE 37 (b) MOTION

A.FACTS:

The facts relative to this subject are the following:

1.On September 20, 1976, the defendants filed their

“Petition for Permission to Process Adverse Action

Against Bertram Perry.’’ On the same day, the Court held

a conference with counsel for the plaintiff and defend-

29a

ants and set the Petition for hearing on the earliest open

date, which was November 22, 1976.

2.On September 23, 1976, the plaintiff filed a Re-

quest for Production of Documents under Rule 34 with

reference to the defendants’ Petition.

3. On October 8, 1976, which was the date set for the

production of the documents, the plaintiff’s attorney

telephoned the defendants’ attorney to inquire whether

the documents would be produced that day. The defend-

ants’ attorney replied that it would be another ten days

before the documents would be ready, and the plaintiff’s

attorney agreed that this would be satisfactory. (The con-

tention that the defendants’ attorney understood from

this conversation “that no strict deadlines were required”

is true only to the extent of the plaintiff’s agreement to

another ten days for the production of documents).

4. After the documents were not produced within this

period, the plaintiff filed a motion to compel production.

Since the defendants’ Petition was set for hearing on

November 22, 1976 and the documents were needed with-

out delay for the plaintiff’s preparation for the hearing,

the Court took immediate action on the plaintiff’s mo-

tion. Accordingly, by Order entered on October 26,

1976, the Court ordered the production of the docu-

ments by November 1, 1976.

5. On November 3, 1976, the defendants filed with the

Clerk of the Court their “‘Answer to Request for Produc-

tion of Documents” stating that certain of the documents

were being produced but refusing to produce the docu-

ments called for by Paragraph 5 of the Request for Pro-

duction on the asserted grounds that such documents

were irrelevant and privileged. On the same date, the

defendants filed a motion for protective order against the

production of these documents.

30a

6. On November 4, 1976, the Court cancelled the hear-

ing on the defendants’ Petition and set for hearing on

November 22, 1976 the plaintiff’s motion under Rule 37

(b) for the dismissal or striking of the Petition and any

other discovery motions which might be pending.

7. The documents which were produced by the defen-

dants were produced on November 3rd and 8th.

8. The defendants only partially complied with other

paragraphs of the Request for Production. With respect

to Paragraph 2, which requested all documents as to all

adverse actions proposed or initiated by the EEOC from

1965 to the present, the defendants produced, on No-

vember 8, 1976, copies of “Standard Form 50”’ giving

notice of adverse actions, but none of the underlying

documentation was produced. With respect to Paragraphs

3 and 4, which requested all documents containing pro-

posals for adverse actions and complaints or requests for

investigation as to EEOC employees, the defendants pro-

duced no documents on the asserted ground that no such

files were maintained. At the hearing, it developed that

the documents requested by Paragraphs 2, 3, and 4 do

exist but are maintained in various EEOC offices and that

the defendants had taken steps to collect the documents,

although none have been produced.

9. Until the November 22nd hearing, the defendants’

position was that the documents called for by Paragraph

5 of the Request for Production would not be produced.

At the hearing, the defendants announced that while they

still objected to the production of the documents if the

Court so ordered.

10. On the same day, however, the defendants sought

to attach certain conditions to production of the docu-

ments. By letter dated November 22, 1976 and written

3la

after the close of the hearing, counsel for the defendants

asked that the Court place the following restrictions on

the production of the documents:

“1. Disclosure limited to Counsel for Plaintiff Ber-

tram Perry.

2. No reproduction of the ‘Audits’ without the

specific authorization of the Court or Counsel for

the EEOC.

3. Counsel should be prohibited from discussing the

contents of the ‘Audits’ with Plaintiff or anyone

else.”

B. ANALYSIS:

1. Effect of the failure to file a timely objection:

It is clear that the defendants’ failure to file timely

objections to the Request for Production constituted a

waiver of the objections. E.g., United States v. 58.16

Acres of Land, 66 F.R.D. 570 (E.D. Ill. 1975) (‘‘an objec-

tion that the information sought is privileged, is waived

by a failure to make it within the proper time limits’’);

Davis v. Romney, 53 F.R.D. 247 (E.D. Pa. 1971) (“If

discovery rules are to have ‘any effect or meaning, the

failure to serve such objections within the time prescribed

* * * should be considered a waiver of such objec-

tions’ ”’); American President Lines v. Hartford Fire In-

surance Co., 55 F.R.D. 61 (E.D. Pa. 1971). Similarly, the

defendants’ protective order motion does not alter the

situation, since Rule 34 required that the point be raised

by timely objections. As Professor Moore says, “The party

served with the request must respond to it within the

time limits set forth in the Rule, or object, stating the

reasons for the objection.” 4A Moore’s Federal Practice

§ 37.02, page 36-37 (2nd ed. 1975).

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32a

2. Criticism of the Court’s Order:

It is argued that the defendants’ failure to file timely

* objections should be excused on the theory that the Court

was in error in entering the Order on October 26, 1976

requiring the production of the documents without prior

notice to the defendants. The Court finds this argument

to be utterly lacking in merit for the following reasons:

To begin with, the argument is irrelevant to the de-

fendants failure to file timely objections. The defendants

made no effort to file any objection before October

26th when the Order was entered, and the Order itself

did not prohibit the defendants from filing an objection.

It is obvious that the Order had nothing to do with the

failure to file timely objections and that the defendants

are wide of the mark in seeking to excuse their failure to

object by criticizing the Order.

Moreover, the defendants’ criticism of the Order disre-

gards the circumstances in which it was entered. When

the Court met with counsel for the plaintiff and defend-

ants on September 20, 1976, it was pointed out that the

defendants had not responded to the plaintiff's initial

Interrogatories and Request for Production filed on

March 22, 1976, some six months earlier. At the same

conference on September 20th, the plaintiff stated that

he would file Interrogatories and a Request for Produc-

tion addressed specifically to the defendants’ Petition,

and the Court asked the defendants to answer them as

soon as possible in view of the defendants’ request for an

early hearing on the Petition. The Court was also aware

that the documents sought by the Request for Produc-

tion were considered by the plaintiff to be critical to his

defense against the Petition and that when the October

26th Order was entered, less than a month remained be-

fore the hearing. It is settled that “A party to an action

has the right to have the benefits of discovery procedure

33a

promptly, not only in order that he may have ample time

to prepare his case before scheduled trial, but also in

order to bring to light facts which may entitle him to

summary judgment or induce settlement prior to trial.”

United States v. Continental Casualty Co., 303 F.2d 91

(4th Cir. 1962). Given the circumstances which existed in

this case, the Court was clearly entitled to enter the

Order immediately.

It is also argued that the order came before the expira-

tion of the period for the filing of the defendants’ re-

sponse to the Production Request. But the facts are that

the defendants had until October 26th to file a response

and did not do so.! Moreover, the event which led to the

motion to compel production was the fact that the defen-

dants did not carry out their representation of October

8th that the documents would be produced in 10 days.

3. The appropriate sanction:

Rule 37 (b) provides that “If a party — fails to obey

an order to provide or permit discovery, — the court in

which the action is pending may make such orders in

_-regard to the failure as are just’, including ‘“‘An order

striking out pleadings”’ and “dismissing the action or pro-

ceeding or any part thereof”. It is well settled that the

appropriate sanction is to be determined in the context

of the particular facts of the case, with the Court’s discre-

tion guided by the standard of the sanction which is just

in light of the facts.

It should initially be said that this is not a case in

which a party attempted in good faith to comply with a

I The Production Request was filed and served on September

23rd. The defendants were entitled to an additional 3 days under

Rule 6 (e), and the 33 days expired on October 26th. Under Rule 5

(b), the defendants’ response was deemed served on November Ist.

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34a

Court order but was unable to do so because of circum-

stances beyond its control. E.g., Societe Internationale v.

Rogers, 357 U.S. 197, 78 S. Ct. 1087, 2 L. Ed. 2d 1255

(1958) (“petitioner’s failure to satisfy fully the require-

ments of this production order was due to inability fost-

ered neither by its own conduct nor by circumstances

within its control’’); Dorsey v. Academy Moving & Stor-

age, Inc., 423 F.2d 858 (5th Cir. 1970) (plaintiff’s failure

“was duc to inability fostered neither by its own conduct

nor by circumstances within its control’’); Bon Air Hotel

v. Time, Inc., 376 F.2d 118 (5th Cir. 1967) (“This record

compels the conclusion that petitioner’s failure to com-

ply was due to inability brought about neither by its own

conduct nor by circumstances within its control’’).

In this case, the plain fact is that after filing the out-of-

time objection, the defendants flatly refused to comply

with the Court’s Order. Compare United States-v. Wright

Motor Co., 536 F.2d 1090 (5th Cir. 1976) (dismissal for

refusal to answer deposition questions); Romari v. United

States, 531 F.2d 296 (5th Cir. 1976) (dismissal for refu-

sal to answer deposition questions); United States v. Cot-

ton Valley Operators Committee, 9 F.R.D. 719 (W.D. La.

1949), aff'd by equally divided Court, 339 U.S. 940, 70

S. Ct. 793, 94 L. Ed. 1356 (1950) (dismissal based on

Government’s refusal to produce documents based on

claim of privilege); United States v. National Broadcasting

Co., 65 F.R.D. 415 (C.D. Cal. 1974) appeal dismissed,

421 U.S. 940, 95 S. Ct. 1668, 44 L. Ed. 2d 97 (1975)

(dismissal where “‘the government has voluntarily chosen

not to comply with the Court’s orders’’); Black v. Shera-

ton Corp., 371 F.Supp. 97 (D.D.C. 1974) (facts taken as

established against the United States based on refusal to

produce documents).

35a

The defendants argue that because they expressed a

willingness to produce the documents called for by Para-

graph 5 of the Production Request at the November 22nd

hearing (disregarding for the moment the defendants’

post-hearing request for the imposition of conditions on

production), the sanction of dismissal should not be ap-

plied. The Court has given careful consideration to’ this

point and has concluded that in the factual circumstances

of this case, the defendants’ belated offer to comply does

not make a lesser sanction appropriate and that the dis-

missal of the Petition is the appropriate sanction. The

Court bases this conclusion on the following facts:

(a) The defendants’ eleventh hour offer does not alter

the fact that they willfully refused to comply with the

Court’s Order. At best, it is an effort to escape the conse-

quences of non-compliance by offering to do what they

were ordered to do almost a month ago. In similar cir-

cumstances, the Courts have not viewed such last-minute

changes of position with favor, and neither does this

Court. Compare Kelley v. United States, 338 F.2d 328

(1st Cir. 1964), in which the plaintiff failed to comply

with the Court’s Order to answer interrogatories, and the

action was dismissed. The plaintiff then offered the ans-

wers to the interrogatories and moved for reconsideration

of the dismissal. The District Court denied the motion to

reconsider, and the Court of Appeals stated as follows in

affirming:

“The sole argument made is that the, order was tuo

strict in this case, and that a fine on counsel, or a

taxing of costs, would have been enough. We are not

in sympathy with this suggestion. In the conduct of

his case, acting for what he surely thought would be

to the best interests of his client, counsel for libel-

lant (not counsel on this appeal) deliberately disre-

garded the court’s order, and by a calculated maneu-

36a

ver sought to obtain an improper advantage. If this

had worked out it would, at least in counsel’s opin-

ion, have helped libellant’s cause. Now, when it

backfired, he wants to take a slap on the wrist and

start over. We refrain from further comment.’”

(b) The Court finds that the defendants deliberately

disregarded the Court’s Order and that the dismissal of

the defendants’ Petition is not only appropriate but es-

sential to maintain the integrity of the orders entered by

the Court. At the hearing, the defendants argued that the

plaintiff was not prejudiced by the refusal to comply

since he still holds his position of Deputy Director of the

Birmingham Office and that the only prejudice to the

plaintiff’s attorney was the time he spent in the prepara-

tion of the Rule 37 motion and in attending the hearing.

However, the refusal of a party to a Federal Court lawsuit

to comply with an Order of the Court cuts substantially

deeper than the question of prejudice to litigants and

their attorneys. A basic tenet of our government of law is

that a party is required to obey a Court order. After hav-

ing refused to comply with the Court’s Order, the defen-

dants now ask for a light sanction by agreeing to do what

they were ordered to do almost a month ago. An order of

a Court is not to be treated so lightly. Compare Norman

v. Young, 422 F.2d 470 (10th Cir. 1970), in which the

Court pointed out in affirming the entry of default judg-

ment for the defendants’ failure to produce documents as

required by Court Order that:

“See also Bon Brimer v. Whirlpool Corp., 362 F. Supp. 1182

(N.D. Cal. 1973), in which the Court stated that ‘this Court finds

that the failure of plaintiffs to come forward with this and other

documents until literally the eve of trial to have been a willful fail-

ure to comply, and accordingly, will exclude Plaintiffs’ Exhibit 6.”

37a

“(T]he Normans’ failure to produce the requested

papers was willful. It was more than intentional; it

was a direct flaunting of the Court’s authority.”

Moreover, the public interest requires not only that

Court orders be obeyed but further that Governmental

agencies which are charged with the enforcement of laws

should set the example of compliance with Court orders.

Regrettably, as this case once again demonstrates, Gov-

ernmental agencies too often set the contrary example of

resistance to discovery. Day in and day out, counsel for

private litigants routinely exchange documents, fre-

quently without a request for production being filed,

while some Governmental agencies seem to take the atti-

tude that their files are for their use only.? This Court

has previously had occasion to invoke a Rule 37 sanction

for the refusal of a Governmental agency to respond to

discovery, United States v. Wright Motor Co., supra, and

it takes this opportunity to remind Governmental agen-

cies with cases in this Court that the discovery rules and

the Court’s discovery orders are to be complied with.

stances of this case, no lesser sanction would be an effec-

tive remedy for the defendants’ disregard of the Court’s

Order.

A resetting of the hearing on the Petition would be

more of a penalty to the plaintiff and the Court than it

= Compare EEOC v. Los Alamos Constructors, 382 F. Supp.

1373 (D. N.M. 1974), in which the Court commented that:

“Those unfortunate enough to be forced into litigation with

the government still face agency insistence on trial by am-

bush, although, as we will see presently, Congress and the

courts agree that a recognition of governmental privilege is

the rare exception, while full disclosure is the almost univer-

sal rule.”

38a

would to the defendants. The plaintiff would be required

to renew his preparation for the hearing, including the

contracting of witnesses residing outside the State who

were released when the hearing was cancelled. Similarly,

the Court would be required to find another date on its

already overburdened docket. When the defendants filed

their Petition on September 20, 1976, they asked the

Court to set the hearing at the earliest possible date, and

the Court complied by giving the defendants the very

first open date on its docket. In view of this fact, the

defendants cannot reasonably suggest that their failure to

comply with the Court’s Order should result in nothing

more than a rescheduling of the hearing.

So also, the sanction of a fine for contempt would

accomplish nothing of any substance. It would be paid by

the EEOC, and the cost would ultimately fall on the tax-

paying public.

In sum, the observations of the Court in G-K Proper-

tres v. Redevelopment Agency of City of San Jose, 409 F.

Supp. 955 (N.D. Cal. 1976), express this Court’s view of

the issue here. In that case, the Court pointed out that

the dismissal of the action was the appropriate sanction

“to protect the integrity of its orders” and that:

‘‘A continuance of the trial date is simply no sanc-

tion at all. — To grant another continuance would in

effect be a sanction against the Court because of the

disruptive effect on the Court’s calendar. Nor would

fines be adequate. Plaintiffs have house counsel fa-

miliar with litigation who read the plain and unam-

bigous language of the Court’s order of October 28,

1975, calling for obviously relevant material. To dis-

regard that order, for reasons known only to plain-

tiffs, is a willful act which threatens the integrity of

the judicial process. Imposing a fine under these cir-

cumstances would introduce into litigation a sport-

39a

ing chance theory encouraging parties to withhold

vital information from the other side with the hope

that the withholding may not be discovered and, if

so, that it would only result in a fine.”

(d) Both the Supreme Court and the Fifth Circuit

Court of Appeals have recently emphasized the impor-

tance of effective Rule 37 sanctions in order to deter

others from similar conduct. In National Hockey League

v. Metropolitan Hockey Club, 427 U.S. 639, 96 S. Ct.

2778, 49 L. Ed. 2d 747 (1976), the Supreme Court

agreed with the District Court’s sanction of dismissal for

failure to comply with an order to answer interrogatories

and stated as follows in so holding:

[T]he most severe in the spectrum of sanctions

provided by statute or rule must be available to the

District Court in appropriate cases, not merely to

penalize those whose conduct may be deemed to

warrant such a sanction, but to deter those who

might be tempted to such conduct in the absence of

such a deterrent. If the decision of the Court of Ap-

peals remained undisturbed in this case, it might

well be that these respondents would faithfully

comply with all future discovery orders entered by

the District Court in this case. But other parties to

other lawsuits would feel freer than we think Rule

37 contemplates they should feel to flout other dis-

covery orders of other district courts.”

So also in Emerick v. Fenick Industries, Inc., 539 F.2d

1379 (5th Cir. 1976), our Court of Appeals pointed out:

“Although we could infer that, following imposi-

tion of a more lenient sanction, the chastened appel-

lant might have complied with the district court's

orders, the Supreme Court has emphasized the de-

terrent aspect of Rule 37 (b) (2) sanctions.”

40a

This consideration has a particularly compelling applica-

tion in the circumstances of this case. The Equal Employ-

ment Opportunity Commission has been given the auth-

ority by Congress to institute lawsuits under Title VII of

the Civil Rights Act in carrying out its important task of

promoting equality in employment, and the Courts are

directed by the statute to expedite the processing of Title

VII cases. It is apparent that if the EEOC were to be

given only a slap on the wrist in this case, such action

might well encourage defendants sued by the EEOC to

delay in responding to the EEOC’s discovery requests and

to argue that the sanction for disregarding discovery rules

and Court orders should be no more than that here given

to the EEOC. The net result would be delays in the pro-

cessing of Title VII cases and a proliferation of discovery

disputes on the Court dockets.

This case is but a grain of sand in comparison to the

ever-increasing volume of Title VII cases and the high

degree of importance inherent in effectuating the goal of

equal employment opportunities. To create the potential

that this case might result in evasiveness and delays by

defendants in responding to discovery in suits filed by the

EEOC would most assuredly be an effort of substantial

magnitude. The sanction of dismissing the Petition is

eminently appropriate ‘‘to deter those who might be

tempted to such conduct in the absence of such a deter-

rent.”” National Hockey League v. Metropolitan Hockey

Club, supra.

(e) While the defendants represented to the Court at

the hearing that the documents would be produced “‘if

ordered by the Court”, this representation was soon

modified by the defendants’ post-hearing letter asking the

Court to attach conditions to the production of the

documents.

4la

The defendants’ post-hearing letter is revealing of their

cavalier attitude toward the discovery rules and _ this

Court’s Order. It contains the statement that the re-

quested conditions should be imposed ‘“‘Should the Court

decide to grant Plaintiff's Request for Production”. At

this late hour, the defendants speak in terms of the

result if the Court grants the plaintiff’s Request for Pro-

duction, when the facts are that Rule 34 was amended in

1970 to eliminate the procedure of a motion and order to

produce,* that it was the obligation of the defendants to

file timely objections to the Request for Production if

they did not intend to comply with it, and that the Court

ordered the production of the documents almost a

month ago.

Moreover, the conditions which the defendants would

have the Court attach to the production of the docu-

ments would have been inappropriate even if they had

been advanced in a timely fashion. The conditions

“Disclosure limited to Counsel for Plaintiff Bertram Perry”

and “No reproduction of the ‘Audits’ without the spe-

cific authorization of the Court or Counsel for the

EEOC” could be interpreted as prohibiting the use of the

documents as evidence, which would remove a principal

value of documentary discovery. Similarly, the con-

dition “Counsel should be prohibited from discussing the

contents of the ‘Audits’ with Plaintiff or anyone else”

would have the manifestly unreasonable result of pro-

hibiting the plaintiff's attorney from discussing the con-

tents of the documents with his own client in prepara-

tion for trail. The fact that the defendants advanced

these requested conditions long after the expiration of

the period for the filing of objections and after they had

*8 Wright and Miller, Federal Practice & Procedure §2207

(1970).

42a

represented to the Court at the hearing that the docu-

ments would be produced is further evidence of the

defendants’ intransigent conduct in responding to dis-

covery and in complying with the Court’s Order. Com-

pare Sperandeo v. Milk Drivers & Dairy Employees Local

Union No. 537, 334 F.2D 381 (4th Cir. 1964), in which

the plaintiff agreed to produce the documents in camera

on the condition that he could reserve the right to dis-

miss. if the Court ruled the documents could be produced

in open court. In affirming the dismissal of the action, the

Court stated that:

“At the outset, we deem the appellant’s conditional

offer to abide the court’s order for an in camera

examination of the documents as tantamount to a

refusal to comply with that order and it will be so

considered. Such an order cannot be conditionally

accepted by a governmental agency, or the head

thereof, any more than it could be so accepted by

any private litigant.”

(f) The sanction of dismissing the Petition is mild by

comparison with the sanctions which are set forth in Rule

37(b) and which have been applied by the courts. It

entails neither the dismissal of an action, nor the entry of

default judgment, nor taking allegations as established

facts. All that it means is that the defendants will not be

allowed to initiate the proposed adverse action set forth

in the Petition. This sanction is clearly no more severe

than that called for by the facts of this case.

(g) The defendants’ refusal to comply with respect to

Paragraph 5 of the Request for Production is com-

pounded by the fact that the defendants produced only

part of the documents requested by Paragraph 2 of the

43a

Production Request and did not produce any of the

documents requested by Paragraphs 3 and 4.°

Accordingly, based on all these facts, the Court finds

that the dismissal of the defendants’ “Petition for Per-

mission to Process Adverse Action Against Bertram Perry”

is the appropriate sanction for the defendants’ failure to

comply with the Court’s Order.

4. Effect of Rule 55:

Although it was not raised by the defendants, the

Court has considered whether the application of this

sanction might be prohibited by the provision of Rule 55

that a default judgment may not be entered against the

United States unless the claimant establishes his right to

relief by evidence satisfactory to the Court. The Court

concludes that Rule 55 does not preclude the sanction

of dismissing or striking the Petition. This sanction will

not result in any default judgment but only in the dis-

missal or striking of the Petition for Permission to Process

Adverse Action. Moreover, the defendants assumed the

position of a moving party in filing the Petition, and the

United States is subject to the sanction of dismissal

under Rule 37(b). 4A Moore’s Federal Practice 4 37.03

page 37-70 (2nd ed. 1975).

II.

EXTENT TO WHICH AN ACTUAL

CONTROVERSY REMAINS

The Court has carefully reviewed the voluminous file

in this case and has concluded in doing so that despite

all the sound and fury which it has generated, there is no

longer any existing actual controversy at the present

time. ,

’The defendants’ failure to produce these documents could

have led to the imposition of sanctions in accordance with Rule 37

(d).

44a

This lawsuit was originally initiated as a result of the

efforts of the defendants to remove the plaintiff from his

position as Deputy Director of the Birmingham District

Office by means of a “‘detail’’. Since then, bowever, the

detail has been withdrawn. Similarly, since there is no

presently existing effort to remove the plaintiff, the

allegations of the amended complaint no longer present

a viable actual controversy.

The Court recognizes the desire to defendant Falkow-

ski to use this lawsuit as the vehicle for seeking to vindi-

cate her actions which were the subject of the plaintiff's

protests, which in turn led to the effort to remove him

from the Birmingham office. The crux of the matter is

that she was present and represented by able and experi-

enced counsel at the preliminary injunction hearing on

August 29, 1975 and on advice of counsel elected not to

testify. Having had second thoughts, she now seeks to

give the testimony that she elected not to give more than

a year ago. The Court fully understands the considera-

tions which motivate her desire to turn back the clock

and provide this testimony, but it is abundantly clear that

the Courts cannot try cases and render decisions to

satisfy the personal desires of anyone when there is no

longer any existing actual controversy.

While the Court finds that there is no longer any actual

existing controversy in this case, the Court also finds that

it 1s necessary to retain jurisdiction to protect the plain-

tiff against a recurrence of allegedly retaliatory actions.

The records before the Court demonstrate that there are

reasonable grounds to apprehend a resumption of acts of

alleged retaliation. This being so, the Court will in the

exercise of its discretion retain jursidiction of this case

for the purpose of resolving any ciaims or issues regard-

45a

ing a recurrence of allegedly retaliatory actions against

the plaintiff. E.g., Atlantic Richfield Co. v. Oil, Chemical

& Atomic Workers International Union, 447 F.2d 945

(7th Cir. 1971), in which Judge Stevens pointed out that

“If past wrongs have been proved, and the possibility of

future misconduct survives, so does the court’s power.”

C. CONCLUSIONS:

For the reasons set forth above, it is by the Court

ORDERED, ADJUDGED, and DECREED as follows:

1. The defendants’ ‘Petition for Permission to Pro-

cess Adverse Action Against Bertram Perry’’ be and the

same is hereby dismissed and stricken under Rule 37(b)

of the Federal Rules of Civil Procedure.

2. The Preliminary Injunction entered on September

11, 1975 be and the same is hereby dissolved.

3. The Court retains jurisdiction of this cause for the

purpose of hearing and resolving any claims or issues

arising out of any recurrence of allegedly retaliatory

actions against the plaintiff subsequent to the entry of

this Order.

4. In order to ensure the protection of the plaintiff

against any recurrence of the alleged acts of retaliation

or discrimination arising from the subject matter of

this case, it is hereby ORDERED that in the event the

Equal Employment Opportunity Commission or any

officer or agent thereof should propose to remove the

plaintiff from his position of Deputy Director of the

Birmingham District Office or from the Birmingham

District Office by any means, including but not limited

to a detail or adverse action, based on any act, occurrence,

or situation arising hereinafter, such proposal shall not

46a

be initiated, proposed, or implemented unless and until

a petition describing such proposal has been filed with

this Court and approved after hearing by the Court.

5. The question of costs is reserved for future deter-

mination by the Court.

47a

APPENDIX G

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

Southern Division

Civil Action No. 75-G-1476-S

[Filed: Nov. 23, 1976]

BERTRAM N. PERRY,

Plaintiff,

ALVIN GOLUB, et al.,

Defendants.

ORDER ON PLAINTIFF’S MOTION AS TO

PARTIES DEFENDANTS

The Court has before it the plaintiff’s motion for the

dismissal of the complaint as against defendants Donald

L. Hollowell and Evelyn Falkowski on the ground that

their presence as parties defendants is no longer necessary

and for the substitution, in place of Lowell W. Perry, of

Ethel Bent Walsh as his successor as Chairman of the

Equal Employment Opportunity Commission. Having

examined the motion, the Court is of the opinion that

the plaintiff is entitled to dismiss without prejudice as

to defendants Hollowell and Falkowski and that Ethel

Bent Walsh is due to be substituted in her Capacity as

Acting Chairperson of the Equal Employment Oppor-

48a

tunity Commission under Rule 25(d)(1) of the Federal

Rules of Civil Procedure. It is therefore by the Court

ORDERED that:

1. The complaint be and the same is hereby dismissed

without prejudice as to defendants Donald L. Hollowell

and Evelyn Falkowski. No costs are taxed or allowed.

2. Ethel Bent Walsh, as Acting Chairperson of the

Equal Employment Opportunity Commission, be and the

same is hereby substituted as a defendant in place of

Lowell W. Perry, as Chairman of the Equal Employment

Opportunity Commission.

DONE, this the 23rd day of November, 1976.

/s/

United States District Judge

a CIO Be rte = ot

49a

APPENDIX H

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

Southern Division

CA 75-G-1476-S

[Filed: Dec. 2, 1976]

BERTRAM PERRY,

Plaintiff,

ALVIN GOLUB, et al.,

Defendants.

MOTION TO RECONSIDER DISMISSAL

Comes now the Defendant Evelyn Falkowski, by and

through her attorney, and moves the Court to reconsider

its order dismissing Evelyn Faikowski as a party defend-

ant in the above-captioned matter for the following

reasons:

1. The Defendant Falkowski has engaged in a struggle

with the EEOC to enforce her right to non-discriminatory

employment practices since 1972; she is presently the

Plaintiff in the case which has been consolidated with this

one, Falkowski v. Perry, et al, Civil Action No. CA

76-G-0545-S.

2. Because the Defendant EEOC could not support

the action requested by the Defendant Falkowski

aT ee ae ee eee

50a

against Plaintiff Perry without admitting and largely

establishing the discriminatory practices complained of

by the Defendant Falkowski, the Defendant EEOC was

not and is not in a position to protect the interest of

Falkowski.

3. Defendant Falkowski proffers to the Court that

Plaintiff Perry is not the competent, conscientious civil

servant depicted to the Court in the hearing of his

preliminary injunction, but a contentious, non-competent

employee who merits separation from federal government

employment. This material is annexed hereto and

marked “‘Exhibit A”’.

4. Defendant Falkowski has at all times pursued her

remedies diligently; she has taken depositions at great

personal expense of Plaintiff and members of the office

supervisory staff tending to disprove the allegations

of Plaintiff Perry and support the nondiscriminatory

conduct of Defendant Falkowski; at no time has the

Defendant Falkowski failed to timely respond to any

motions filed by Plaintiff Perry or to abide by any order

of this Court.

5. The presence of Defendant Falkowski as a party

in this suit creates great hardship to the Plaintiff because

of her persistent pursuit of her defense; it appears it

would be more convenient for the Plaintiff to avoid the

constant exposure of the weakness of his case through

the efforts of Defendant Falkowski. The. deletion of

Defendant Falkowski, over her strenuous objections

leaves the Plaintiff free to make unsubstantiated allega-

tions concerning the conduct of Falkowski, allegations

which later appear as findings of fact in the public record,

without giving her an opportunity to rebut and counter

such allegations. At the time of the preliminary injunc-

tion, Plaintiff was judged to have established a likelihood

net A Oa i ee Yi Me oa

en ee

5la

of success on the merits; the findings made in that

preliminary injunction, however, did not become

irrebutable presumptions nor res-judicata. If Defendant

Falkowski is dismissed from the suit, she will never have

an opportunity to establish the merits of her defense.

/s/

Judge

DENIED

1-14-77

52a

APPENDIX I

IN THE

INITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

Southern Division

Civil Action No. 76-G-545-S

[Filed: Nov. 30, 1976]

EVELYN FALKOWSKI,

Plaintiff,

LOWELL PERRY, et al.,

Defendants.

ORDER

The plaintiff in this cause is the District Director of

the Birmingham District Office of the Equal Employment

Opportunity Commission. She filed this suit against the

Equal Employment Opportunity Commission and various

officials of the EEOC. Reduced to its essentials, her

complaint alleged that she was being harassed and dis-

credited by her supervisors in the performance of her job

and that she was not being allowed to perform her job.

The defendants thereafter moved to dismiss on the

grounds of lack of jurisdiction, failure to state a claim,

and mootness.

Having duly considered the matter, the Court is of the

opinion that the complaint is due to be dismissed except

aoa ta abies eae

Bi ee en ee ee ee ube nee

53a

to the extent that it might be interpreted as having

reference to the attempted removal of the plaintiff from

her position as Director of the Birmingham Office in

1975.!

It appears from the undisputed facts before the Court

that at the time the plaintiff filed her complaint on

April 19, 1976, certain aspects of her authority as

District Director had been suspended by defendant

Donald L. Hollowell, who was Regional Director of the

Region which included the Birmingham District Office

at the time he suspended her authority. However,

subsequent to the filing of the complaint, the plaintiff's

full authority as District Director was restored to her

on May 3, 1976. It is undisputed that at the present and

at all times since May 3, 1976, the plaintiff has been and

is fully exercising the full authority of her position as

District Director of the Birmingham District Office and

that she is not being subjected to any alleged harassment.

In light of these factual circumstances, the Court finds

that the conditions of which the plaintiff complained

no longer exist, that there is no existing substantial

controversy between the «parties, and that the cause has

become moot. De Funis v. Ogegaard, 416 U.S. 312

(1974); Prewer v. Newkirk, 422 U.S. 395 (1975); Locke

v. Board of Public Instruction, 499 F.2d 359 (5th Cir.

1974). |

Since there is no suggestion of any reasonable grounds

to apprehend a resumption of the acts of which the

plaintiff complained in her complaint, it follows that the

Court need not retain jurisdiction of this case to protect

the plaintiff against any resumption of the conduct

'It is not entirely clear whether the complaint was intended

to set forth an allegation with regard to the attempted removal of

the plaintiff in 1975.

55a

54a |

d 3. The question of costs is reserved for future deter-

alleged in her complaint, except to the extent it might mination by the Court.

have reference to the attempted removal of the plaintiff DONE, this the 29th day of November, 1976.

in 1975. However, since the Equal Employment Oppor-

tunity Commission attempted in 1975 to remove the

plaintiff from her position as Director at the same time

it attempted to remove the plaintiff in Perry v. Golub, /s/

et al., Civil Action No. 75-G-1476-S, from his position

as Deputy Director and since the Court has retained

jurisdiction of the Perry case in order to consider any

recurrence of allegedly retaliatory conduct, the Court

is of the opinion that a similar retention of jurisdiction

in this case would be both equitable and appropriate.

It is therefore by the Court ORDERED, ADJUDGED,

and DECREED that:

1. Except to the extent that it might be interpreted

as having reference to the attempted removal of the

plaintiff from her position of Director of the Birming-

ham Office of the Equal Employment Opportunity

Commission in 1975, the complaint be and the same

is hereby dismissed, without prejudice.

United States District Judge

2. The Court retains jurisdiction of this cause for

the purpose of hearing and resolving any claims or issues

arising out of any proposal to remove the plaintiff from

her position as Director of the Birmingham Office sub-

sequent to the entry of this Order.?

*Since there is no reasonable ground on which to apprehend

a recurrence of an effort to remove the plaintiff as there is in the

Perry case, it is not necessary in this case to include the provision

of the Order in the Perry case requiring a review by the Court }

of any proposal to remove the plaintiff. In the event any such j

proposal should be made with respect to the plaintiff, it can

be brought to the Court’s attention by the plaintiff or by the

defendant under the retention of jurisdiction provision of the

Order in this case.

we ae die. Si

56a

APPENDIX J]

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

Southern Division

CA 75-G-545-S

[Filed: April 1, 1977]

EVELYN FALKOWSKI,

Plaintiff,

LOWELL PERRY, et al.,

Defendants.

ORDER

On Motion of the Plaintiff and for good cause shown

the Court amends its Order of 30 November 1976, as

follows:

Amend Paragraph 2 to read: ‘2. In the event the

Equal Employment Opportunity Commission or any

officer or agent thereof shall propose to remove the

Plaintiff from her position of Director of the Birming-

ham District Office or from the Birmingham District

Office by any means, including but not limited to a detail

or adverse action, based on any act, occurrence, or

situation arising hereinafter, such proposal shall not be

initiated, proposed, or implemented unless and until a

57a

petition describing such proposal has been filed with

this Court and approved after hearing by the Court.”

DONE this Ist day of April, 1977.

/s/

U.S. District Judge

‘

“

58a

APPENDIX K

[Preliminary Hearing Findings of Fact and Conclusions of

Law, entered September 11, 1975, by U.S. District Court

of the Northern District of Alabama, S.D. in Perry v.

Golub, published 400 F. Supp. 411.]

FINDINGS OF FACT AND CONCLUSIONS

OF LAW ON PRELIMINARY

INJUNCTION HEARING

GUIN, District Judge.

The plaintiff’s motion for a preliminary injunction was

heard by the Court on August 29, 1975 following notice

to all parties. Subject matter jurisdiction, personal

jurisdiction over defendants, and venue are not con-

tested. The Court has,jurisdiction under 28 U.S.C.

§ 1343.

FINDINGS OF FACT

Based on the testimony of the witnesses and the

exhibits introduced at the hearing, the Court finds that

the plaintiff has shown through the evidence that the

standards required for preliminary injunctive relief are

satisfied.'

1E.g., Canal Authority of State of Florida v. Callaway, 489

F.2d 567, 572-573 (5th Cir. 1974). It might be noted in the

interest of complete analysis that the defendants agree that this

[footnote continued]

eee OR es

59a

A. Substantial likelihood that plaintiff will prevail on

the merits:

This case arises from the ‘‘permanent reassignment’’?

of plaintiff Bertram N. Perry from his position of Deputy

District Director of the Birmingham District Office of the

Equal Employment Opportuinty Commission, to be

accomplished by placing him on a ‘“‘detail’’ of 120 days or

less in Washington, D.C. and then reassigning him to

another position. The central issues are whether this

permanent reassignment was attributed to improper

reasons and whether the procedure followed in im-

plementing this permanent reassignment was improper.

(1) Reason for the action:

The initial issue is whether (as plaintiff contends)

this reassignment was motivated by the fact Mr. Perry

protested and eventually reported to the United States

Attorney certain “‘irregularities” in the handling of

cases by District Director Evelyn Falkowski or whether

(as defendants contend) it was based on a personality

conflict and attendant leadership problems between

Mr. Perry and Ms. Falkowski. The Court finds from the

evidence introduced at the hearing that Mr. Perry’s

reassignment was motivated by a desire to remove the

case should be decided on the basis of the traditional standards

governing preliminary injunctions and do not assert any arguments

regarding administrative remedies or any different considerations

as to injunctions in cases involving Government personnel.

2While the testimony was replete with conflict and confusion

regarding the nature of the action in question, it was characterized

by Acting Executive Director Alvin Golub as being a “permanent

reassignment”. In view of the undisputed facts that the intention

was to remove the plaintiff from the Deputy District Director

position in the Birmingham office and that he would not be

returned, this seems to be the most accurate phraseology.

60a

source of potentially embarrassing revelations concerning

the Birmingham office and by displeasure with

Mr. Perry’s actions in continuing to protest the District

Director’s conduct and in taking the matter to the

United States Attorney.?

The facts established through the evidence are as

follows:

1. Mr. Perry has been with the EEOC in Birmingham

District office since 1968 and has been the Deputy Dir-

ector of the office since 1972. He is regarded as one of

the most outstanding persons in the EEOC. All of the

witnesses, including the defendants’ witnesses, agreed

that he has superior abilitity in the substantive principles

of the Title VII law and in the EEOC compliance proce-

dures, is extremely hard working, insists on quality and

dedication in the work performed by EEOC personnel,

and has an intense desire to upgrade the ability and

workmanship of all EEOC personnel. To the extent that

the evidence indicated any fault in Mr. Perry, it is that he

does not “suffer fools gladly” and has vocally expressed

his criticism of substandard work and departures from

EEOC procedures. While he might well benefit from

more tolerance of those whose abilities and dedication to

work do not match his ow, it is abundantly clear that

the action taken against him could not be justified on

the basis of any deficiencies in his abilities.

3It should be noted that the Court is not Passing on the pro-

priety or impropriety of the District Director’s actions. That is a

question to be resolved by Judge Pointer in the suit brought by

the District Director challenging her removal. For purposes of

the case before this Court, it is enough that Regional Director

Hollowell testified that the investigation resulting from the plain-

tiff’s reports showed what he regarded as ‘“‘overtones of mal-

feasance” and “abuses of authority”. Nothing said in this case

should preclude the District Director from contending or attempt-

ing to show that the Regional Director’s findings were in error.

are i ee

Pi no

a a id eR REE Ne CP aE ISL Bs PAS EE te ka IR IRIN oe ltl lA rc hah ae eho ST a:

Wt ot eae

6la

2. Ms. Falkowski became Director of the Birmingham

office in November of 1974. Within several weeks there-

after, Mr. Perry observed that she was engaged in certain

actions which he considered to be improper. According

to the evidence in this case, these actions included

issuing a cause decision in a case pending in court before

receiving the investigator’s report on which the decision

was supposed to be based, giving instructions to “fail

conciliation” (that is, to refuse to settle regardless of any

offers made by the respondent), giving instructions to

remove a no cause decision from the file in a case pending

in court after unsuccessfully trying to change it to a

cause decision, and accusing a respondent of destroying

and altering records without evidence it was doing so

and then blaming this accusation on someone else. The

suggestion of the evidence was that many of these actions

were seemingly designed to use the Commission’s proce-

dures to assist certain plaintiffs and their attorneys in

pending court cases.

3. Mr. Perry objected to these actions on the ground

that cases should be decided on their facts and in accord-

ance with EEOC procedures and that Ms. Falkowski’s

actions could cause the courts and the public to lose

confidence in the EEOC. On numerous occasions, he

expressed his protests against these actions to Ms. Fal-

kowski, to Regional Director Hollowell, and eventually to

the United States Attorney.

4. In March of 1975, Regional Director Hollowel]

assigned a “‘Regional Review Team” to review the oper-

ations of the Birmingham office during the period since

Ms. Falkowski had become District Director. The report

of the Regional Review Team subsequently led him to

conduct a closer investigation into her activities as Dis-

trict Director. This included the propounding to her of

62a

written questions regarding the matters which had been

reported by Mr. Perry, as illustrated by the following:

“Johnson et al vs. University of Alabama (Birming-

ham Campus) —

Query Number 1

In view of the fact that a nght-to-sue letter had been

issued 9-24-74 and a suit filed December 26, 1974;

and inasmuch as ordinarily the administrative

process automatically ceases whenever a suit is

filed;

a. Why was an investigation of Martha Johnson’s

charge renewed?

b. At whose instance was it renewed?

c. Did the fact that the aformentioned civil action

was pending in any way affect the decision to rec-

ommence the investigation?

* * *

Query Number 2

Since the record file shows that the issuance date of

the LOD (2-7-74)4% is seven days earlier than the is-

suance date of the investigative memorandum signed

by the supervisor (2-14-75), please state:

a. How do you account for the LOD having been

issued by you a week in advance of the issuance of

the investigative memorandum?

b. Since the investigative memorandum had not

been issued at the time the LOD was written, upon

what evidence was the LOD based?

* * *

4The “LOD” is the determination of cause or no cause.

—_

65a

Query Number 8

In part II why does the LOD state that the charging

party has been discharged when in fact she has never

been discharged?

Query No. 11

You wrote a letter to Dr. Joseph F. Volker,

President of the University of Alabama-Birmingham

on March 19, 1975 indicating that certain officials

‘have been and currently are altering records and

other documents which are or may be material

evidence in these cases—.’ Since this is an extraor-

dinarily serious accusation which is forbidden by the

federal regulations, please state upon what specific

and objective information you accused state officials

of said illegal conduct.

* * *

Morgado vs. Jefferson County Defense Corps—

Query Number 1

Inasmuch as permission had been gotten from

D & I to issue a ‘no cause’ as of April 29, 1975 on

the issue of ‘failure to reclassify —sex’, why was not

the LOD issued?

Query Number 2

On May 30, 1975, you issued the following

memorandum ostensibly through the deputy to the

supervisors — ‘when there has been a private suit

filed under the 1866 Civil Rights Act, we should

never issue a ‘no cause’ determination unless this is

consistent after examining all evidence obtainable

from private plaintiff's attorney .*-

Was the issuance of said memorandum in any way

related to the instant case or those who have an

interest therein?”

64a

It is obvious that these questions were incisive and

precisely directed to the points which had been the sub-

ject of Mr. Perry’s protests and reports.

5. Mr. Hollowell testified that-the results of these in-

vestigations revealed that Ms. Falkowski was engaged in

conduct which had been characterized as having ‘‘over-

tones of malfeasance” and as “‘abuses of authority”. The

defendants therefore do not deny that the protests which

Mr. Perry had been expressing were shown by the inves-

tigation to be well founded.

6. On July 1, 1975, Regional Director Hollowell sus-

pended Ms. Falkowski’s authority to “sign off’’ (that is,

to issue) decisions, settlements, and conciliation agree-

ments. Thereafter, by memoranda issued on July 3 and

8, 1975, Mr. Perry was given authority in his capacity a:

Deputy Director to review and approve cases and to exer-

cise certain management functions.

7. Although Mr. Perry’s protests were ultimately

vindicated by the investigation, it is undisputed that the

defendants were not pleased with his actions in protesting

and reporting these matters. Ms. Falkowski, for exam-

ple, attempted to have him removed from office through

an “‘adverse action”, which was rejected on the ground

that it would not be upheld by the Civil Service Com-

mission. Similarly, Regional Director Hollowell instruc-

ted him not to have any further discussions with the

United States Attomey.

8. The situation in the Birmingham office was the sub-

ject of a series of meetings held in Washington over a

period of four days. These meetings were attended by

approximately seven EEOC officials, including Acting

Executive Director Goiub and Regional Director Hollo-

well. The initial “consensus decision” of at least the

majority of the EEOC officials attending these meetings

renee ga eg

65a

was that Ms. Falkowski would be removed and that Mr.

Perry would remain in the office. Thereafter, however,

this consensus was overruled by Acting Executive Director

Golub, who decided that Mr. Perry was to be removed

from the Birmingham office. Since Acting Executive

Director Golub is second only to the Chairman in the

EEOC chain of command, EEOC officials acquiesced in

his decision.

9. Having reversed the consensus decision, Mr. Golub

called an EEOC personnel official into the meeting and

asked him whether the desired end could be accomplished

by using the “detail” procedure, to which he received an

affirmative answer. Regional Director Hollowell there-

after issued a notice which directed Mr. Perry to report

on “detail” to Washington effective August 25, 1975,

pending reassignment to some unidentified location.

This notice was received by Mr. Perry on August 15,

1975, thus giving him ten days to comply with these

instructions.°

10. The defendants contend that the last-minute

overruling of the consensus decision was. based solely

on the alleged personality conflict and resulting lead-

ership problems between Mr. Perry and Ms. Falkowski

and that Mr. Perry’s protests regarding the District

Director’s activities had nothing to do with it. The

evidence does not substantiate this contention and on

the contrary points clearly to a casual nexus between

Mr. Perry’s protests and the decision to remove him from

his position as Deputy Director of the Birmingham office.

For example, the defendants’ contention rests on Mr.

Perry’s arguments with Ms. Falkowski, but the defen-

dants do not deny that these arguments resulted from or

5 ,

It was subsequently agreed by counsel! for th« parties that

the deadline would be changed to September 2, 1975 in lieu of

applying to the Court for a temporary restraining order

66a

consisted in substantial part of his continued protests

against her actions as District Director. Similarly, the

defendants agreed that there has Deen a “running rift”’ be-

tween Ms. Falkowski and Supervisor of Conciliations

Charles Davis. As one of the defendants’ witnesses tes-

tified, Ms. Falkowski had ‘‘the same problem” with Mr.

Davis. However, Mr. Davis, who did not join Mr. Perry

in his protests and has not been to the United States

Attorney, was not removed, reassigned, or detailed. The

defendants offered no explanation for this difference in

treatment, and it is a fair inference from the evidence

that it was at least partially due to the fact the Mr. Davis

did not protest and report the irregularities in the District

Director’s activities in office.

So also, the decision to remove Mr. Perry from his

position was reached at the conclusion of the series of

meetings at which the situation which had been uncovered

in the Birmingham office as a result of his reports was

discussed, and it is inconceivable that the focus of these

meetings was on a personality conflict. The defendants

would have the Court find that the high ranking EEOC

officials attending the meetings were relatively uncon-

cerned about the uncovering of conduct by the District

Director which, according to Regional Director Hollowell,

“would have prevented the EEOC from being able to

protect charging parties in a number of cases” and

devoted their attention instead to a personality conflict.

That is far too illogical to accept. The conclusion which

conforms with logic and with the evidence is that these

meetings focused on the serious problem of Ms.

Falkowski’s actions and Mr. Perry’s continued protests

and reports regarding her actions.

Similarly, the thinly-veiled warnings given to Mr. Perry

when he continued to protest Ms. Falkowski’s conduct in

67a

the face of earlier admonitions that he should in effect

“leave it alone” cannot be disregarded. The Court finds

that the statements made to Mr. Perry — such as “You

don’t want to be branded as a problem-maker. And you

know what I mean” and “If you continue to pursue the

Falkowski matter, it will only cause a close look at you”

— were meant to convey the message that one who calls

attention to an internal problem may himself be treated

as a “problem-maker” and may suffer for having done

so.®

The contention that Mr. Perry’s reassignment was

based solely on a personality conflict is furthermore

inconsistent with the past history of the Birmingham

office. While the defendants sought to portray Mr. .

Perry as having chronic conflicts with Directors, the

picture which emerged from the evidence was that he has

had such conflicts only with Directors whose actions do

not conform to his standards of objectivity and quality.

For example, a previous Director of the Birmingham

office credibly testified that he and Mr. Perry had a

pleasant and productive relationship. Similarly, when

Mr. Perry had conflicts with a previous Director, the

action taken was the reassignment of the Director.’

°An mnocuous meaning could not reasonably be given to these

warnings. As the Fifth Circuit recently said in finding an improper

motive in the statements of a defendant:

“When extracted from its natural context, Harper’s language

may indeed appear ambigous. When set within the frame-

work of the evidence as a whole, however, its meaning is

clear.” Sabala v. Western Gillette. Inc., 516 F.2d 125]

(5th Cir. 1975).

?The suggestion bv defendants’ counsel that this previous

Director voluntarily left the Birmingham office resulted in obvious

reactions of incredulity and shock ox the part of EEOC officials in

the courtroom, including witnesses for both the plaintiff and the

defendants.

68a

It was not until Mr. Perry had protested and reported

the irregularities being engaged in by District Director

Falkowski that he was himself removed, and it is a

logical inference from the evidence that this removal

was attributable to more than a personality conflict.

Moreover, to accept the defendants’ contention that

the removal of both Mr. Perry and Ms. Falkowski was

motivated solely by their personality conflict would

require acceptance of the corollary proposition that

Ms. Falkowski’s removal had no connection with her

conduct in office even though it had been found,

according to Regional Director Hollowell, that ‘‘there

might even be some compliance indiscretions on her part

that were having a negative effect on charging parties,

respondents, and the Comission” and that “the errors,

if unchecked, would have prevented the EEOC from

being able to protect charging parties in a number of

cases.”” The Court cannot accepi the illogical conclusion

that this information in the possession of responsible

officials of the EEOC, the removal of Ms. Falkowski

was based solely on a personality conflict. The Court is

persuaded the Ms. Falkowski’s removal was based on the

results of the investigation instigated by Mr. Perry’s

protests and that Mr. Perry’s removal was based on the

ground that he was creating potential embarrassment to

the EEOC by continuing to protest the District Director’s

activities and by calling the matter to the attention of the

United States Attorney. In effect, the decision was that

“Falkowski must be removed because of what she’s been

doing and Perry must be removed before he blows the lid

off any more than he has and to show him that we meant

it when we told him to leave it alone.”’

11. The Court finds that Acting Executive Director

Golub’s action in overruling the consensus decision and

enforcing a new decision to remove Mr. Perry from the

Perey ae ae I)

69a

Birmingham office was based on an effort to silence

Mr. Perry’s protests and reports and to punish him for

not heeding the instructions to “leave it alone” and that

it was arbitrary and an abuse of administrative discretion.

12. The defendants concede that the duties of Mr.

Perry’s position as Deputy District Director included the

responsibility to report departures from established

EEOC procedures and do not dispute that he had the

Constitutional right to speak out against the District

Director’s irregularities in the performance of her

office.

(2) Procedure followed:

The evidence regarding the procedure followed in

implementing the proposed permanent reassignment can

best be described as a morass of inconsistencies in the

defendants’ evidence. While the defendants’ witnesses

agreed that the Civil Service Commission regulations

define a “detail” as the temporary assignment of an

employee with the intention that he shall return to the

position from which he was detailed, they inconsistently

testified that Mr. Perry will not return to his position.

Similarly, while they agree that the regulations define the

situations in which a detail may be used, they inconsist-

ently testified that the EEOC has “administrative

discretion” to use a detail in other situations and that it

can detail any employee anywhere at any time for any

reason.

Entirely aside from these conflicts in the defendants’

position, it was clear from the evidence that the action in

question was not proper “detail” as defined by the Civil

Service Commission regulations. The regulations provide

that “A detail is the temporary assignment of an em-

ployee to a different position for a specified pertod, with

the emplovee returning to his regular duties at the end o|

70a

the detail” and that “‘the employee continues to be the

incumbent of the position from which detailed.”’ Since

the defendants’ witnesses consistently testified that

Mr. Perry was being “permanently reassigned” and would

not return to his position, it is obvious that this plan was

not a detail as defined by these provisions of the

regulations. The regulations further provide that the

“Details are intended only for meeting temporary needs

of the Agency’s work program when necessary services

cannot be obtained by other desirable or practical

means.” The evidence in this case, however, indisputably

established that this was not at all the intended purpose.

The defendants’ witnesses did not even try to claim that

there was any work elsewhere for which necessary

services could not be obtained by other desirable or

practicable means. It was instead obvious from their

testimony that this was the converse case of removing the

plaintiff and thereafter trying to find some place to put

him. Even at that, Acting Executive Director Golub

showed considerable discomfort on the witness stand

when he was questioned about the work Mr. Perry would

be doing and was able to give only vague answers to the

question. ~

For these reasons, the Court finds that Mr. Perry’s

permanent reassignment was not a detail as defined

in the regulations.

2. If it were necessary to give.a label to the proposal,

it would be an “adverse action”. The regulations provide

that an adverse action includes “reduction in rank or

pay” and that “In law and the Commission’s regulations,

the term rank means something more than a numerical

grade, or class, or level under a classification system or

its equivalent in the coordinated Federal Wage System.

Basically, it means an employee’s relative standing in the

7la

agency’s organizational structure, as determined by his

official position assignment. —When an employee is made

the subject of an official personnel action which results in

a lowering of his relative standing in the Agency’s organi-

zational structure, a reduction in rank has occurred, even

though the employee has not been reduced in numerical

grade, or class, or level.’’ In this case, the Court finds

from the testimony of Acting Executive Director Golub

that the job he says he has in mind for Mr. Perry would

result in a lowering of his relative standing in the

Agency’s organizational structure.

Moreover, the defendants’ witnesses sought to justify

Mr. Perry’s permanent reassignment on the basis of the

phraseology that it would “promote the efficiency ot

the service.” It is significant that in doing so, the

witnesses were using the provisions of the regulations

that “Adverse action may not be taken against an em-

ployee covered by this chapter except for ‘such cause as

will promote the efficiency of the service’” and that an

‘agency may “remove, demote, or reassign to another

position any employee in the competitive service whose

conduct or capacity is such that his removal, demotion.

or reassignment will promote the efficiency of the

service.”

3. The defendants concede that Ms. Falkowski’s

attempt to remove Mr. Perry through an adverse action in

June of 1975 was rejected on the ground that it would

not be sustained by the Civil Service Commission.*

It is apparent that the action taken against Mr. Perry was

cast in the form of a detail because it could not be

accomplished through an adverse action.

SThe regulations provide that “A just and substantial cause is

necessary as a basis for an adverse action” and that “any adverse

action taken must be based on good cause, be consistent with

other such actions taken by the agency, and be fair and equitable.”

72a

The defendants further concede that the action against

Mr. Perry was taken without compliance with the

provision of the regulations that “‘The agency must

observe certain procedural requirements when processing

an adverse action”’, including at least thirty days advance

notice which must state any and all materials relied on

for the proposed action, allowing the employee a reason-

able amount of time to secure affidavits and prepare an

answer, and giving of a written decision before the

adverse action is effected.

Since the action in question was an adverse action

concededly taken without compliance with any of the

prerequisite procedural safeguards, and was cast in the

form of a detail which did not conform to the applicable

regulations for the reason that an adverse action could

not be upheld, it was arbitrary and an abuse of discretion

and as well an infringement of Mr. Perry’s Constitutional

rights.

4. In the final analysis, it is not necessary to a

resolution of the preliminary injunction phase of this case

to decide whether Mr. Perry’s reassignment was a “‘detail”’

or an, “adverse action” or something else. It is the

substance and not the form which is controlling, and the

overriding and determinative point is that regardless of

the form in which it may be cast, the action taken against

Mr. Perry has been shown by the evidence at the hearing

to be improper. Even if it were a detail, it would not be

any less improper, since a legal wrong cannot be trans-

formed into allowable conduct by clothing it in an

innocuous form.

(3) Summary:

In sum, based on the facts as found from the evidence

presented at the hearing, the Court finds that there is a

substantial likelihood that the plaintiff will prevail on the

merits on any one or more of the following grounds:

73a

First, that the “permanent reassignment” constituted

an attempt to prevent him from discharging the duties of

his office or to injure him in his person or property on

account of the lawful discharge of the duties of his

office.?

Second, that it was arbitrary and an abuse of adminis-

trative discretion.!°

Third, that the actions taken against the plaintiff

constituted an infringement of his First Amendment and

Fifth Amendment rights.

B. Substantial threat that plaintiff will suffer irreparable

injury uf the injunction ts not granted:

The defendants argue that it is common to detail

Government employees to temporary duties elswhere.

That is doubtless so, but it has no application to the

facts of this case. The evidence in this case established

without dispute that while Mr. Perry’s reassignment has

been phrased in the form of a detail, it in actuality

consists of a plan to remove him from his position as

Deputy District Director of the Birmingham office and to

reassign him permanently elsewhere, with the intention

being that he would not be returned to the Birmingham

office.

The defendants further argue that the resulting

separation from his family on the one hand or the

necessity of taking his children out of the Birmingham

942 U.S.C. §1985(1).

10 :

5 U.S.C. $706. The Court is aware that there are conflicting

views as to a Court’s jurisdiction and review nghts under this

statute. Since this ground is not necessary to this decision, there

is no need to resolve these conflict.

fad

74a

schools in which they are enrolled is merely an “‘incon-

venience”. Even accepting that proposition for purposes

of analysis, the effect on Mr. Perry’s career cannot be so

lightly dismissed.

During his seven year career with the EEOC’s Birming-

ham District Office, Mr. Perry has been successively

promoted from positions of investigator and conciliator

to Supervisor of Investigations and Deputy District

Director, he has served as Acting District Director, he has

been rated above average, superior, and outstanding on

most of his performance appraisals and has received a

number of commendations for his work, and he has

established a reputation as one of the most outstanding

officials in the EEOC. The injurious impact of the

proposed plan on this hard-earned record and on his

future career could be incalculable. Even though he

might ultimately regain his position in the Birmingham

office by reason of a final decision in this lawsuit, no one

could doubt that he would carry the stigma of having

been involuntarily removed from his position, The stain

cast on a person’s reputation by an accusation quite often

remains unerased by a subsequent vindication.

Moreover, the evidence satisfies the Court that the

threatened action would irreparably damage Mr. Perry’s

status in the Birmingham office. It was apparent from

the evidence, and in particular the testimony of former

District Director Thomas McPherson, that Mr. Perry’s

insistence upon quality work and dedication to the task

of the EEOC has created some resentments and negative

reactions toward him on the part of less able and less

dedicated subordinates in the Birmingham office. This

resentment and negative reaction provokes no sympathy,

since it is after all the duty of a Deputy Director to direct

75a

subordinates ir the proper performance of their work.!!

The Court has no doubt that Mr. Perry’s removal would

lead these subordinates to believe they had prevailed

against him and that when he ultimately returned to the

Birmingham office through his lawsuit, he would have an

even more difficult task in attempting to obtain quality

workmanship and hard work from them.

Furthermore, it is not necessary for this Court to

bottom its conclusion that irreparable injury was shown

on the extraordinary nature of the injuries to the plaintiff

shown by the evidence. The Court has found that the

action taken against the plaintiff was an infringement of

his Constitutional rights, and as stated in 11 Wright and

Miller, Federal Practice and Procedures § 2948, page 440

(1973):

“When an alleged deprivation of a constitutional

right is involved, most courts hold that no further

showing of irreparable injury is necessary.”

For these reasons, the Court finds that there is

substantial threat the plaintiff will suffer irreparable

injury if preliminary injunctive relief is not granted.

C. The threatened tmjury to plaintiff outweighs any

threatened harm which the injunction may do to

defendants:

The evidence indisputably established that the issuance

of preliminary injunctive relief would result in no harm

to the defendants. While there was some half-hearted and

after-thought suggestion that Mr. Perry’s excellent

abilities may have been needed in the Washington office,

!1 Those whose background includes service in the Army may

recall that directions received from a First Sergeant have a similar

tendency to produce negative reactions.

76a

the evidence left no doubt that this theory was totally

devoid of any substance and that the motivating force

behind the proposed reassignment was to remove him

from the Birmingham office, with only the most minimal

and inconclusive thought having been given to what

would be done with him once the purpose of removing

him from the Birmingham office had been accomplished. —

The Court finds that the threatened harm to the

plaintiff without question outweighs any threatened

harm which preliminary injunctive relief would cast on

the defendants.

D. The granting of preliminary injunctive relief will not

disserve the public interest:

The evidence convincingly satisfies the Court that

the granting of preliminary injunctive relief would in

no way disserve the public interest and would on the

contrary be in the public interest. If Mr. Perry had

engaged in irresponsible or unfounded accusations

against the District Director, the result might well be

different. But that is not this case. The defendants

themselves agreed that Mr. Perry’s reports were well-

founded and ultimately led to uncovering of a situation

which, according to Regional Director Hollowell, could

have jeopardized the ability of the EEOC to protect

charging parties. It clearly was in the public interest that

this situation was uncovered as a result of Mr. Perry’s

protests and reports, and it is equally in the public

interest that he should not be penalized for having had

the courage to speak out against it.

Morever, in the Bicentennial year of this Country,

it is well to remember that the bedrock of the 200

year history of our democracy has been the individual

rights of the citizen. Indeed, the Court has taken an oath

77a

to defend and protect the rights of the citizen. These

rights indisputably include the right to speak out against

conduct on the part of a Government official, and the

evidence before the Court in this case is convincing the

proposal to reassign Mr. Perry was. motivated by a

negative reaction to the excercise of his right to report

and correct the situation in the EEOC Birmingham office.

To countenance the plaintiff’s proposed reassignment

could well cast an inhibiting effect on the excercise of his

right, not only by him but on other public servants as

well. The public interest clearly dictates that the

excercise of this legtimate right by Mr. Perry to be

protected against the proposal to remove him from the

Birmingham office.

With the caveat that this finding is based on the

facts of this case and should not be misunderstood as

encouraging irresponsible or unfounded accusations in

other cases, the Court finds that the granting of

preliminary injunctive relief will not disserve the public

interest aid that it will in fact serve the public interest.

Il.

PROPOSAL FOR THE INITIATION

OF ADVERSE ACTION

When it became apparent during the hearing that the

action taken against Mr. Perry was not a detail as defined

in the Civil Service Commission regulations, the

defendants’ attorneys suggested thai the Court should

leave the door open for the initiation of an adverse action

against him based on his alleged “insubordination” or

“mutiny”!? toward District Director Falkowski. In

effect, the proposal was that since the procedure

ee proee J

? The plaintiff’s actions were referred to as “mutiny” by the

District Director. .

78a

followed was improper, the Court should authorize the

defendants to back up and start anew by processing an

adverse action based on his alleged ‘“‘insubordination”’.

The Court has concluded that this would not be

appropriate. Regional Director Hollowell testified that

the procedure of removing Mr. Perry from the Deputy

Director position by means of an adverse action was

proposed by Ms. Falkowski in June of 1975 but was

rejected on the ground that it would not be upheld by

the Civil Service Commission. In view of this fact, it

is apparent that the renewal of an adverse action would

have elements of an attempt to circumvent the prelim-

inary injunction. Moreover, the alleged ‘“‘mutiny” was

part and parcel of his opposition to the “‘irregularties”’

on the part of the District Directer, and the initiation

of an adverse action would have the effect of again

penalizing Mr. Perry for his actions in protesting the

District Director’s conduct.

This further comment should be expressed in the

hope of avoiding unnecessary complications in this

case. It is not within the Court’s authority to extend

the preliminary injunction to matters involving Mr.

Perry’s protests (or “‘insubordination’’) regarding Ms.

Falkowski’s activities or to circumstances or events

occuring subsequent to the hearing. However, the fact

that Mr. Perry’s entire career with the EEOC has been

in the Birmingham office and the fact the the adverse

action proposed in June 1975 was rejected on the ground

it would not be upheld should suggest that an attempt to

remove Mr. Perry from the Birmingham office during the

pendency of the preliminary injunction would be subject

to close and careful scrutiny. }

Par

79a

III.

CONCLUSIONS OF LAW

The plaintiff has established through evidence that

the prerequisites to the granting of a preliminary

injunction are met and that a preliminary injunction

should be granted to protect plaintiff from irreparable

injury and to protect the Court’s power to render a

meaningful decision. E.g., Canal Authority of State

of Florida v. Calloway, 489 F.2d 567 (5th Cir. 1974).

A preliminary injunction will be accordingly issued.

IV.

CONCLUSION

Having reviewed the complaint before the hearing,

the Court carried the initial impression into the

courtroom that Mr. Perry would have a difficult burden

of proof to justify the issuance of a preliminary

injunction against the reassignment of an official of an

administrative agency. By the end of the day long

hearing, the Court was firmly convinced that the evidence

had overwhelmingly shown a flagrant mistreatment of a

public servant whose dedication and insistence upon

quality workmanship were conceded even by the

defendants and who clearly deserved commendation and

not punishment for having the courage of his convictions

to speak out against conduct which was confirmed by the

defendants’ investigations as being seriously improper and

destructive of the important function of the EEOC.

A court cannot step beyond the boundaries of

permissable judicial action or seek to solve all the ills

which afflict society.'?> Yet there can be no reasonable

13See Judge Henry J. Friendly’s Federal Jurisdiction: A General

View (1973).

80a

doubt that a Court would fail to fulfill its responsibilities

if it did not extend judicial protection to the plaintiff on

the evidence in this case. ‘The very essence of civil

liberty”, as Chief Justice Marshall said, “‘certainly consists

in the right of every individual to claim the protection of

the laws, whenever he receives an injury.”’!* Guided by

this fundamental precept, the Court is confident that Mr.

Perry is entitled to the protection of the law on this

evidentiary record which reveals a_ regrettably high

handed and improper treatment of his rights and of the

outstanding reputation which he has established as an

able and dedicated career officer with the EEOC.

14 Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60 (1803).

(tata Pedder Ot Me HR

8la

APPENDIX L

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

Southern Division

Civil Action No. 73P1009

[Filed: Sep. 9, 1974]

EVELYN P. FALKOWSKI,

Plaintiff,

JOHN H. POWELL, JR., Chairman,

Equal Employment Opportunity Commission,

Defendant.

CONSENT ORDER

In this civil action, plaintiff charges defendant, and

Donald Hollowell, Atlanta Regional Director of the

Equal Employment Opportunity Commission, with

discrimination based upon sex and race, in violation of

42 U.S.C. § 2000e and related executive orders. The

parties, in order to avoid further litigation and trial, and

without any admission of wrongdoing, have conferred at

length and now advise the Court that they have resolved

the controversy as hereinafter set forth; it is, therefore,

hereby ORDERED, ADJUDGED AND DECREED:

1. That in the event vacancies arise in Birmingham

District Office of the Equal Employment Opportunity

82a

Commission, at levels considered desirable to plaintiff,

including the positions of Director and Deputy Director,

defendant shall consider plaintiff’s applications therefor

[or requests for transfer thereto] in a very favorable light.

Civil Service Commission regulations preclude any pre-

selection of candidates for any position.

2. That the defendant EEOC shall amend Paragraph

15b(1), of the Equal Employment Opportunity Commis-

sion’s “Merit Promotion Plan” to include the following

footnote: “Provided, however, that such selection does

not result in discrimination in violation of the principles

of Title VII and other nondiscrimination laws.”

3. That defendant shall pay all costs incurred by

plaintiff in pursuing her charge of discrimination, exclud-

ing attorney’s fees.

ORDERED, this 9th day of September, 1974.

/s/

United States District Judge

AGREED TO IN FORM

AND CONTENT:

/s/ Melvyn R. Leventhal

Counsel for Plaintiff

/s/ John J. Pagano

Counsel for Defendant

;

{

;

{

83a

APPENDIX M

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article [I.]

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

Article [V.]

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the military, when in actual

service in time of war or public danger; nor shall any per-

son be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be witness against himself, nor be de-

prived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use,

without just compensation.

SUBCHAPTER I—GENERALLY

§ 1981. Equal rights under the law

All persons within the jursidiction of the United

States shall have the same right in every State and Terri-

tory to make and enforce contracts, to sue, be parties,

give evidence, and to the full and equal benefit of all laws

and proceedings for the security of persons and property

as is enjoyed by white citizens, and shall be subject to

84a

like punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

(R.S. §1977.)

§ 2000e-2. Discriminaton because of race, color, religion,

| sex, or national origin

(a) Employers. It shall be an unlawful employment

practice for an employer—

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, con-

ditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as

an employee, because of such individuals’ race, color

religion, sex, or national origin.

§ 2000e-3. Other unlawful employment practices

(a) Discrimination on account of opposition to un-

lawful practices or participation in investigation, pro-

ceeding, or hearing. It shall be an unlawful employment

practice for an employer to discriminate against any of

his employees or applicants for employment, for an

employment agency, or joint labor-management com-

mittee controlling apprenticeship or other training or

retraining, including on-the-job training programs, to

discriminate against any individual, or for a labor organ-

ization to discriminate against any member thereof or

applicant for membership, because he has opposed any

practice made an unlawful employment practice by this

85a

title [42 USCS § § 2000e-2000e-17], or because he has

made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under

this title [42 USCS § § 2000e-2000e-1 7].

§ 2000e-16. Nondiscrimination in Federal Government

employment

(a) Discrimination prohibited. All personnel actions

affecting employees or applicants for employment

(except with regard to aliens employed outside the limits

of the United States) in military departments as defined

in section 102 of title 5, United States Code, [5 USCS

$102] in executive agencies (other than the General

Accounting Office) as defined in section 105 of title 5,

[5 USCS §105] United States Code (including em-

ployees and applicants for employment who are paid

from nonappropriated funds), in the United States

Postal Service and the Postal Rate Commission, in those

units of the Government of the District of Columbia

having positions in the competitive service, and in those

units of the legislative and judicial branches of the

Federal Government having positions in the competitive

service, and in the Library of Congress shall be made

free from any discrimination based on race, color, religion,

sex, Or national origin.

receipt of notice of final action taken by a department,

agency, or unit referred to in subsection 717(a) [| subsec.

(a) of this section], or by the Civil Service Commission

upon an appeal from a decision or order of such depart-

ment, agency, or unit on a complaint of discrimination

based on race, color, religion, sex or national origin,

brought pursuant to subsection (a) of this section, Execu-

tive Order 11478 or any succeeding Executive orders, or

86a

after one hundred and eighty days from the filing of the

initial charge with the department, agency, or unit or

with the Civil Service Commission on appeal from a

decision or order of such department, agency, or unit

until such time as final action may be taken by a depart-

ment, agency, or unit, an employee or applicant for

employment, if aggrieved by the final disposition

of his complaint, or by the failure to take final action

on his complaint, may file a civil action as provided in

section 706 [42 USCS §2000e-5], in which civil action

the head of the department, agency, or unit, as appro-

priate, shall be the defendant.

(d) Application of certain provisions. The provisions

of section 706(f) through (k) [42 USCS §§2000e-5

(f)-(k)], as applicable, shall govern civil actions brought

hereunder.

(e) Continuing responsibility of agencies and officials

to assure nondiscrimination. Nothing contained in this

Act [title] shall relieve any Government agency or

official of its or his primary responsibility to assure non-

discrimination or employment as required by the Con-

stitution and statutes or of its or his responsibilities

under Executive Order 11478 relating to equal employ-

ment opportunity in the Federal Government.

(July 2, 1964, P.L. 88-352, Title VII, §717, as added

Mar. 24, 1972, P.L. 92-261, §11, 86 Stat. 111.)

+ a aS ee a ae ct

hPL AA hi M62 PA TI wales Tat

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.