Ms. McCreesh's contention that if she were a male or other than white, she would have been promoted on schedule prior to the "freeze."
As best as can be gleaned from the various exhibits in the administrative record, an Equal Employment Opportunity (EEO) counselor interviewed plaintiff on two occasions in May, 1972, to discuss plaintiff's grievance. Unable to resolve the matter, plaintiff filed a formal Equal Employment Opportunity complaint on June 13, 1972 claiming racial and sexual discrimination in the delay of her promotion. An investigation was then conducted by an EEO investigator who concluded that plaintiff's promotion was delayed because of a civilian employment control policy then in effect and not on account of race or sex. The investigator's report contains the affidavits of Ms. McCreesh, Captain Berude and Mr. Ernest Kassner, one of Ms. McCreesh's superiors, in addition to numerous documents and memos. Presumedly, the investigator's report was based solely on these items without the taking of any testimony. The report was then forwarded to the Commander of the Navy Yard and Ms. McCreesh. The Commander informed Ms. McCreesh that on the basis of that report, he found no evidence to support her discrimination complaint and that his proposed disposition would be against Ms. McCreesh. She was informed that she was entitled to a hearing before an Appeals Examiner of the Civil Service Commission. Thereafter, the final decision of the Department of Navy would be made. If Ms. McCreesh failed to request a hearing, final decision would be entered without further proceeding. According to the record, Ms. McCreesh requested such a hearing before an Appeals Examiner, but the record contains nothing to indicate that the hearing was ever held or that it was subsequently waived by Ms. McCreesh. Thereafter, however, Ms. McCreesh did meet informally with Captain Frank Knock of the Naval Ship Systems Command who reviewed the findings of the EEO investigator with her and informed her that in his opinion no discrimination had occurred. After indicating her desire to institute a civil action in federal district court, Captain Knock, by letter of April 16, 1973, issued the final decision of the Navy Department denying Ms. McCreesh's complaint. Ms. McCreesh then commenced this civil action.
On the basis of the current administrative record, I must now determine the appropriate disposition of this case. In Hackley, Judge Gesell granted summary judgment for the defendants on the basis of the administrative record after finding that the absence of discrimination was affirmatively established by the clear weight of the evidence in the record. Hackley, supra at 1253-1255. Significantly in Hackley, both plaintiffs had been granted extensive evidentiary hearings before a Civil Service Commission Appeals Examiner and the record contained the transcripts of those hearings, 250 and 985 pages respectively. By contrast, the record in the instant case is barren of any evidentiary hearing transcript and consists solely of reports, letters, memos and other documents, most of which are hearsay, in addition to the three affidavits previously mentioned. Moreover, even as presently assembled, the record is deficient in several respects. The EEO investigator's report, which formed the primary basis of the Department's decision, was presumedly based on the affidavits and documents contained therein. However, noticeably absent from the list of affiants is Mr. Charles Proud, the supervisor who actually recommended Ms. McCreesh for promotion to GS-11.
Secondly, the EEO investigator's report indicates that several civilian promotions were made during the period from April 11, 1972 to June 30, 1972 despite the shipyard's policy restricting such promotions. The report, however, simply concludes without explanation that the majority of these promotions could qualify under the "key position" exception to the policy. The two promotions which admittedly could not so qualify are explained as necessary and minor respectively. These promotions involve the crux of Ms. McCreesh's complaint yet none of the essential facts concerning them are detailed in this record. Until these facts are fully presented, it is impossible to properly judge plaintiff's claim of discrimination and categorical dismissal is improper. Furthermore, Ms. McCreesh's complaint alleges discrimination throughout the period of April 11, 1972 to November 19, 1972. The record, however, does not indicate that any investigation was conducted into the reasons for Ms. McCreesh's promotion delay or related promotion actions after June 30, 1972.
It is also interesting to note that Mr. Ernest Kassner, supervisor of Ms. McCreesh, stated in his affidavit that "as soon as the freeze on promotions was terminated (30 June 1972), I initiated a memorandum strongly recommending Karen McCreesh for promotion to Personnel Staffing Specialist GS-11." The record does not indicate what action, if any, was taken on this recommendation or why Ms. McCreesh's promotion was thereafter delayed until November 19, 1972.
This is not, of course, to suggest that Ms. McCreesh did in fact suffer racial and/or sexual discrimination. I simply conclude that the present administrative record is entirely insufficient to sustain a finding of no discrimination and, therefore, summary judgment must be denied.
Although in my discretion, I may properly remand this case to the Navy Department for further investigation, hearing and report, Handy, supra at 679, the more expeditious choice is to retain jurisdiction. The alleged discrimination occurred approximately two years ago and the Navy Shipyard may be unable to effectively revive its investigation due to changes in personnel, etc. Moreover, Ms. McCreesh is no longer employed at the Navy Shipyard which might further impede action by Shipyard officials. I will therefore schedule a hearing for this case at which time testimony may be presented by both parties on the discrimination claims of Ms. McCreesh.
AND NOW, this 6th day of August, 1974, the defendant's motion for reconsideration is DENIED and DISMISSED. An evidentiary hearing is scheduled in this case for August 22, 1974, in Courtroom #15, U.S. Courthouse, Ninth & Market Streets at 10:00 A.M.
BY THE COURT: