author: JOSEPH H. YOUNG, District Judge.

text:
    Chester A. LANEHART, et al. v. Donald J. DEVINE, et al.
    Civ. No. Y-83-3545.
    United States District Court, D. Maryland.
    Aug. 19, 1985.

      Ira M. Lechner, Washington, D.C., and Donald H. Feige, Towson, Md., for plaintiffs.
    Catherine C. Blake, U.S. Atty., D. Md., and Jack C. Tranter, Asst. U.S. Atty., Baltimore, Md., for defendants.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

This case is an action by employees of the federal government for damages for a declaratory judgment against their employer, the United States of America. Plaintiffs are federal employees engaged in firefighting activities at various military and airport installations across the country. They contend that in computing the rates of pay to which they are entitled for time spent (1) on jury duty or witness service under 5 U.S.C. § 6322, (2) performing services in the reserves of the armed forces or the National Guard under 5 U.S.C. § 6323, (3) on annual leave under 5 U.S.C. § 6303, and (4) on sick leave under 5 U.S.C. § 6307, the government, through the then director of the office of Personnel Management (“OPM”), Donald Devine, has denied them the full measure of pay which they allege they are statutorily guaranteed. Each plaintiff claims that, as a result of this alleged denial, he or she has lost certain backpay and sues to recover that amount. Accordingly, plaintiffs seek (1) all pay which they normally and regularly would have been paid had they worked their standard work schedule while on court, military, annual or sick leave, and (2) interest on the amounts found due, from October 11, 1977, or the date of their employment with the federal government, whichever is applicable. Plaintiffs further request a declaratory judgment defining their rights under the above-referenced leave statutes and awarding attorneys’ fees, expenses, and costs. Defendants contend that plaintiffs have received the full amount of pay to which they are legally entitled.

Both parties have filed motions for summary judgment, and agree that there are no facts in dispute. Having reviewed the pleadings, the Court finds the plaintiffs’ arguments are without merit and that defendants are entitled to summary judgment as a matter of law, for the reasons stated herein.

The facts are undisputed. Plaintiffs are civilian employees of the United States who are firefighters employed at various military and airport installations across the country. As firefighters, plaintiffs are required to work shifts of twenty-four hours on duty followed by twenty-four hours off-duty, with one additional day off bi-weekly so that each Federal firefighter regularly and normally works three twenty-four hour shifts each seven day period. This amounts to one hundred forty-four hours of regularly scheduled work per fourteen day period.

During each twenty-four hour shift, the firefighter is normally at the fire station for the entire period, in a work status for eight hours and in a standby status, which includes a designated sleep period, for the remaining sixteen hours. The firefighters are on duty for the entire twenty-four hour period and respond to duty calls which occur during the work status and standby status.

Under Title 5, United States Code, the method of compensating Federal firefighters is different from the normal basic pay arrangement for other full-time federal employees who work a forty hour work week. For each weekly tour of duty a federal firefighter receives a combination of basic pay and annual premium pay for regularly scheduled standby duty. The standby duty pay is in lieu of premium pay for regularly scheduled night, Sunday, holiday and overtime duty under other provisions of Sub-chapter V of Chapter 55 of Title 5. The firefighters may, however, receive overtime under Title 5 for irregular, unscheduled overtime in excess of their regularly scheduled 72 hour weekly tour of duty. That overtime is computed at a rate of “one and one half times” the firefighter’s hourly regular rate times the number of overtime hours.

Prior to 1974, all pay- entitlements of federal employees, including the plaintiffs, were set forth in Title 5. In 1974, however, the federal government in its status as an employer was brought within the coverage of the Fair Labor Standards Act by the enactment of the Fair Labor Standards Amendments of 1974. Under the FLSA as applied to these plaintiffs, the method for compensating federal firefighters for excess hours is also different from the regular overtime pay requirement after 40 hours in a work week for other federal employees covered by the FLSA.

In extending coverage of the FLSA to employees engaged in fire protection activities, Congress departed from the normal time period used in determining FLSA overtime pay—the 40-hour work week— and adopted a tour of duty/work period standard for determining firefighter FLSA overtime entitlement. 29 U.S.C. § 207(k). This special overtime provision provides that employees engaged in fire protection activities are entitled to overtime compensation for “tours of duty” that exceed a specified number of hours in a 28-day “work period.” Most federal agencies, however, administer this section on a 14-day work period to coincide with federal firefighters’ bi-weekly pay periods under Title 5.

The average number of hours after which FLSA overtime is due to firefighters is 53 in one week. As a result, federal firefighters on 72 hour weekly tours of duty receive additional overtime pay for the 19 hours in their regularly scheduled tours of duty that exceed the FLSA overtime standard of 53 hours. This additional overtime pay is computed as follows: one half times a firefighter’s hourly regular rate of pay times the number of overtime hours. Thus, the firefighter is paid once for the 72 hour weekly tour of duty by receipt of the basic pay and standby duty pay under Title 5, and receives an additional “one half times” the hourly regular rate of pay for the 54th through 72nd hours. For all hours in excess of their regularly scheduled 72 hour weekly tours of duty firefighters receive one and one half times their hourly regular rate of pay.

In four separate statutes, Congress has mandated that federal employees are “entitled to annual leave with pay,” 5 U.S.C. § 6303, “entitled to sick leave with pay,” 5 U.S.C. § 6307, “entitled to leave, without loss or reduction in pay” for jury duty or witness duty, 5 U.S.C. § 6322, and “entitled to leave without loss in pay” for not more than fifteen days of annual training in the military reserves or National Guard, 5 U.S.C. § 6323.

Thus, a federal firefighter’s total compensation is determined pursuant to a complicated system of dual entitlements under Title 5 and the FLSA. Congress recognized the possible conflicts between the two statutory provisions, and the legislative history of the 1974 FLSA amendments reflects Congress’ consideration of possible problems:

The Secretary of Labor in 1973, reflected the Civil Service Commission’s view when it recommended against bringing federal employees under the coverage of the Fair Labor Standards Act. The Commission’s position was that Federal employees are already covered by special pay provisions in Title 5, United States Code, and that enactment of this legislation would confuse the administration of these provisions and could raise jurisdictional problems of administration.
The committee resolved this matter by including Federal employees within the coverage of the Act and charging the Civil Service Commission with responsibility for administration of the Act so far as Federal employees (other than employees of the Postal Service, the Postal Rate Commission or the Library of Congress) are concerned. It is the intent of the committee that the Commission will administer the provisions of the law in such a manner as to assure consistency with the meaning, scope, and application established by the rulings, regulations, interpretations, and opinions of the Secretary of Labor which are applicable in other sectors of the economy. The provisions of the bill would leave the premium pay provisions of Title 5, United States Code, in effect to the extent that they are not inconsistent with the Fair Labor Standards Act.

H.R.Rep. No. 913, 93rd Cong., 2d Sess. 28 (1974), reprinted in [1974] U.S.Code Cong, and Adm.News 2811, 2837-2838.

Prior to 1974, the FLSA had been administered in the private sector by the Wage and Hour Division of the Department of Labor. The 1974 amendments changed that system. While the Wage and Hour Administrator continued to administer the FLSA in the private sector, the Civil Service Commission (now OPM) was to administer the Act in the federal sector:

Notwithstanding any other provision of this Act, the (Office of Personnel Management) is authorized to administer the provisions of this Act with respect to any individual employed by the United States (other than an individual employed in the Library of Congress, United States Postal Service, Postal Rate Commission, or the Tennessee Valley Authority).

29 U.S.C. § 204(f).

Pursuant to this Congressional directive, OPM (then the Civil Service Commission) issued a series of directives called Federal Personnel Manual (FPM) letters with instructions to federal agencies concerning application of the FLSA to federal employees. One of these FPM letters, FPM letter # 5-551-5 (see Defendants’ Ex. 1), contains comprehensive instructions to federal agencies for the computation of overtime pay under the FLSA. These instructions have been codified at 5 C.F.R. § 551.513.

Among the many conflicts which have resulted between the provisions of Title 5 and the FLSA in computing pay entitlements under the dual system is the conflict regarding the computation of “hours of work,” which effects the computation of overtime pay. It is a basic principle under the FLSA that periods of non-work, such as paid leave, holidays, or excused absences are not included in computing hours of work. Boll v. Federal Reserve Bank, 365 F.Supp. 637 (D.Mo.1973), aff’d, 497 F.2d 335 (8th Cir.1974); 5 C.F.R. § 551.401(b). In contrast, under Title 5, excused absences with pay during the time an employee would otherwise have been required to be on duty are included as hours of work.

The amount of overtime payable to a federal employee is dependent upon the definition of “hours worked,” because under the FLSA overtime is available only when an employee had accumulated “hours of work” in excess of the applicable overtime standard. In view of this and other conflicts between Title 5 and the FLSA, OPM has provided that in computing employees’ entitlements, separate computations should be made under each law and, to the extent that the FLSA provides the greater benefit, the employee is to receive that benefit.

Thus, under the present system, federal firefighters generally receive basic pay and standby pay for 72 hours weekly under Title 5, and overtime pay under the FLSA for all hours in excess of 53 hours weekly that the firefighters actually work. Federal firefighters are not compensated, under the current interpretation, for hours in excess of 53 that they would have worked but for annual leave, sick leave, court or military leave.

Plaintiffs contend that the four “leave with pay” statutes authorize the payment to federal firefighters of all pay they would have received had they worked, including all payments for FLSA overtime. It is the plaintiffs’ contention that in enacting the “leave with pay” statutes, Congress intended to “insure that when federal employees took the paid leave which they had earned, they would be paid the same pay that they regularly and normally would have been paid if they had worked their regular schedule of hours instead of taking paid leave.” Plaintiffs assert that “contrary to Congress’ specific direction, the United States refuses to pay federal employees the same pay that they regularly would have earned,” and that this refusal is a “misapplication of clear Congressional intent to guarantee that federal employees will not be penalized in their pay” for taking authorized, earned and accumulated annual leave, sick leave, court leave, or military leave. Plaintiffs’ argument seems to rest mainly on a contention that Congressional intent was overwhelmingly clear and that the “leave with pay” statutes command the payment of FLSA overtime for hours not worked, although such payment is not authorized under the FLSA. A recent opinion of the Comptroller General of the United States supports the plaintiffs’ position with respect to court leave and military leave, see Matter of Overtime Compensation for Firefighters, 62 Comp. Gen. 216 (1983), although an even more recent opinion, Matter of Evans, B-216640 (March 13, 1985) is adverse to the plaintiffs’ argument with respect to annual and sick leave.

The OPM’s position, however, is that plaintiffs cannot receive overtime compensation under the FLSA for periods of non-work, such as leave. Therefore, OPM has concluded that the “leave with pay” statutes under Title 5 only authorize the payment of Title 5 pay, that is, basic pay and premium standby pay. Annual and sick leave absences do not reduce the amount of basic or premium standby pay a firefighter receives under Title 5, nor do absences for court leave or military training. Therefore, OPM contends that plaintiffs are receiving the full quantum of pay to which they are entitled. OPM argues that the “leave with pay” statutes do not authorize or require the payment of overtime pay which would have been available under the FLSA to firefighters if they had actually worked.

The sounder position is the position adopted by the OPM. Contrary to plaintiffs’ assertions, there is no evidence of any clear Congressional intent on either side of this question. The simple use of the word “pay,” on which plaintiffs place so much weight, is meaningless in terms of determining Congressional intent. A resolution, therefore, depends upon a delicate balancing of construction of the two statutes involved and an attempt to give the proper effect and meaning to both. OPM’s interpretation gives effect to both statutes while resolving a potential conflict between them, whereas the plaintiffs’ position would basically ignore the FLSA and give effect only to the provisions of Title 5. Faced with that choice, the Court must agree with the position of the OPM.

This Court is confronted with two statutes which cover much of the same area and at times may conflict. The OPM, confronted with the same choice, has chosen to administer the provisions of Title 5 and the provisions of the FLSA separately and independently of each other, insofar as possible. OPM’s choice is consistent with the rules of statutory construction which this Court must follow:

The courts are not at liberty to pick and choose among Congressional enactments, and when two statutes are capable of coexistence, it is the duty of the court, absent a clearly expressed Congressional intention to the contrary, to regard each as effective.

Andrus v. Glover Construction Co., 446 U.S. 608, 618-19, 100 S.Ct. 1905, 1911, 64 L.Ed.2d 548 (1980), quoting Morton v. Mancan, 417 U.S.C. 535, 551 (1974). Unless there is a “positive repugnancy” between the two statutes such as they are in “irreconcilable conflict” both statutes are to be given effect. Radzanower v. Touche Ross & Co., 426 U.S. 148, 155, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1976).

Here, the two statutes can obviously be read to co-exist. Title 5, which was enacted before the FLSA was amended to include federal employees, provides that federal employees in the position of these firefighters are entitled to a certain basic pay plus standby premium pay (in lieu of overtime) for the extra hours worked. Provisions of Title 5 provide that excused absences with pay during the time an employee would have otherwise been required to be on duty are included as hours of work. Title 5 does not, however, provide for the payment of any overtime pay until an employee has worked hours in excess of regularly scheduled hours. Thus, federal firefighters must work more than 72 hours in order to be entitled to any overtime under provisions of Title 5.

The FLSA, standing separately, provides that federal firefighters may be paid “overtime,” in addition to their basic and standby pay under Title 5, for regularly scheduled hours within the 72 hour weekly tour of duty, but only if those hours are actually worked. The most obvious and reasonable construction of these two statutes, taken together, is the construction which the OPM has reached in its separate administration of the two laws. Thus, hours of leave taken for any reason do not reduce an employee’s entitlement to basic and standby pay under Title 5, but those hours of leave are not included in the computation of FLSA overtime. The four “leave with pay” statutes do not change this conclusion in any way. They merely provide that an employee who takes annual leave, sick leave, court leave or military leave should receive any pay to which he is entitled. He cannot be entitled to FLSA overtime pay for hours not actually worked.

This interpretation is the only interpretation which allows both statutes to be given effect. Plaintiffs claim that the four “leave with pay” statutes authorize a payment for overtime which the FLSA specifically does not allow. Such an argument converts the “leave with pay” statutes into “premium pay” provisions which would overrule the authoritative interpretation of the FLSA. In the absence of any indication of Congressional intent to give more weight to the provisions of Title 5 than to the FLSA, this Court will not infer authority to pay overtime where it does not exist.

Furthermore, OPM’s construction of the statutes is entitled to special deference in this Court. 29 U.S.C. § 204(f) gives OPM the authority to administer the provisions of the FLSA with respect to federal employees. The legislative history of that section indicates that authority was vested in OPM to resolve any conflicts between Title 5 pay entitlements and the new FLSA entitlements. See H.R.Rep. No. 913, 93rd Cong., 2d Sess. 28 (1974), reprinted in U.S.Code Cong, and Adm.News 2838. OPM’s role in resolving such conflicts and the meaning of the House Report cited above were discussed by two Representatives on the House floor:

MR. HENDERSON (Chairman of the House Committee on Post Office and Civil Service): I assume that the [Civil Service] Commission [now OPM] will have the authority to determine who in the Federal work force is covered and how the existing provisions of law on overtime for Federal employees are going to be administered when in conflict with the provisions of the FLSA.
* * * * * *
MR. DENT (Chairman of the House Committee on Labor and Education, which developed the 1974 Amendments): Mr. Chairman, the gentlemen is absolutely correct.

120 Cong.Rec. 7335 (Mar. 21, 1974).

Thus, it is clear that OPM, as the Administrator of the FLSA in the federal sector, has the authority to resolve, in the first instance, any conflicts between the Title 5 and FLSA pay entitlements. OPM has performed this function by separately administering FLSA and Title 5 to the extent possible, by providing for separate computations of overtime entitlements under each law with each employee to receive whichever benefit is greater. 5 C.F.R. § 551.513. OPM’s interpretation has led to its conclusion which plaintiffs attack in this action.

As the Supreme Court has noted:

When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. “To sustain the Commission’s application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.”

Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); quoting Unemployment Commission v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136 (1946).

The OPM has made a determination in the course of administering the FSLA that the “leave with pay” statutes do not authorize or require the payment of FLSA overtime compensation for hours not actually worked. OPM takes the position that the “leave with pay” statutes only require the payment of the full measure of Title 5 pay, that is, basic pay and standby premium pay. That position is reasonable and, as noted, gives effect to two statutes, not just one.

The Comptroller General has recently issued opinions which bear on this question, and this Court is entitled to consider these opinions. In Matter of Overtime Compensation for Firefighters, 62 Comp. Gen. 216 (1983) and in Matter of Gipson, B-208831 (April 15, 1983) (pi. Ex. 28), the Comptroller General determined that firefighters on paid authorized court or military leave were entitled to receive the full amount of their regular pay check, including GLSA overtime for regularly scheduled work. In one decision, the Comptroller General stated:

There is nothing in the language of 5 U.S.C. § 6322 which restricts its application to compensation otherwise payable under Title 5, United States Code, and we are not aware of anything in the legislative history that, would compel such a restrictive view.

Matter of Overtime Compensation for Firefighters, supra, at 218-19. The opinion concluded that 5 U.S.C. § 6322 provided authority to pay FLSA overtime which would not be authorized under the FLSA.

In a later opinion, however, the Comptroller General concluded that the same rationale did not apply to the annual and sick leave provisions. Matter of Evans, B-216640 (March 13, 1985). The Comptroller General held that absences for annual and sick leave do not constitute “hours of work” for the purpose of the FLSA, in accordance with earlier opinions of the Comptroller General, Louis Pohopek, 60 Comp.Gen. 493 (1981), R. Elizabeth Rew, 55 Comp.Gen. 1035 (1976). Therefore, the opinion concluded that overtime entitlement may be reduced for firefighters on annual or sick leave.

The Comptroller General distinguished its own earlier opinion by noting that the annual and sick leave provisions “do not contain the same language protecting against loss or reduction in pay as is contained in Section 6322 (court leave) and 6323 (military leave.)” The later opinion also noted that “the decision in 62 Comp. Gen. 216 regarding court leave did not treat such leave as ‘hours of work’ under the FLSA. Rather, we pointed out that Section 6322 of Title 5, United States Code, provides leave for jury duty without reduction or loss of pay to which otherwise entitled.” The Comptroller General did not address any further the inherent inconsistency in these two rulings.

This Court is not bound in any way by the opinions of the Comptroller General, nor is the Court persuaded by their logic. The Comptroller General does not have the authority to administer the pay provisions of the FLSA, as does the OPM, and as such is not entitled to the same deference as the OPM. Furthermore, the opinions of the Comptroller General are internally inconsistent. In General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), the Supreme Court recognized that the consistency of an agency ruling with earlier and later rulings may be important in determining how much weight to accord an agency interpretation. In this case, the Comptroller General has attempted to distinguish his earlier ruling, but the Court is not convinced that there is any distinction. If hours of authorized leave, for any reason, are not “hours of work” for the purposes of FLSA overtime, then there is no entitlement to overtime pay for those hours of leave. That conclusion should stand regardless of minor differences in the wording of the four “leave with pay” statutes. Having considered the opinions of the Comptroller General, the Court does not find they are deserving of great weight.

Plaintiffs argue that because the OPM’s interpretation of the FLSA has not been codified in regulations, that interpretation is not entitled to deference by this Court. That contention is without merit. In many cases where the administrative interpretation had not been reduced to a regulation, the Supreme Court has nevertheless recognized that the administrative interpretation is entitled to judicial deference. See, e.g., Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965) (administrative construction of regulations), General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976) (EEOC interpretations). In Skidmore v. Swift, 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), the Court noted:

We consider the rulings, interpretations, and opinions of the Administrator under this Act, while not controlling upon the Court by reason of their authority, to constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.

Similarly without merit is plaintiffs’ contention that the OPM’s interpretation is against clear Congressional intent. There is no manifestation of Congressional intent in the four “leave with pay” statutes. Plaintiffs’ assertion that the word “pay” is of such common understanding as to constitute an indication of clear Congressional intent to pay FLSA overtime while on leave is frivolous. Nor is OPM’s interpretation unreasonable. In fact, it is a very reasonable interpretation which gives effect to both Title 5 and FLSA and seems in accordance with the overall intent of Congress.

Plaintiffs have argued that under certain provisions of Title 5 and the accompanying regulations, federal employees may be entitled to overtime pay for any regularly scheduled overtime, regardless of whether the employee actually works the scheduled hours. Plaintiffs assert that 5 C.F.R. §§ 550.112 and 532.503(b)(1) allow federal employees to receive overtime pay when they are on annual and sick leave. Plaintiffs therefore contend that the OPM has not interpreted FLSA consistently with those Labor Department regulations, as it was directed by Congress. Plaintiffs have misinterpreted these regulations. The regulations merely provide that periods of leave will be considered hours of work and will not otherwise reduce an entitlement to overtime pay for overtime work performed at another time. For example, an employee who takes 8 hours of sick leave one day and works three extra hours the next day is still entitled to three hours worth of overtime pay. Contrary to plaintiffs’ assertions, the regulations do not provide for employees to receive overtime pay for periods of non-work.

In general, an employee may not be compensated for overtime work when he does not perform work during the overtime period. See 42 Comp.Gen. 195, 45 Comp. Gen. 710; 46 Comp.Gen. 217; 55 Comp. Gen. 629. Another example of the treatment of overtime under Title 5 is § 201 of the Federal Employees Pay Act of 1945, now 5 U.S.C. § 5542, which authorizes payment of overtime compensation “for all hours of employment, officially ordered or approved, in excess of 40 hours in an administrative work week or ... in excess of 8 hours in a day, performed by an employee.” The authorization for overtime in this section contemplates the actual performance of work in overtime hours. Leave is an absence during the basic 40 hour work week. Employees do not take leave during overtime hours. The regulations cited by plaintiffs do not support their claim of entitlement to overtime compensation for hours not worked.

Finally, plaintiffs argue that they are suing exclusively under the provisions of Title 5, and that the Court should ignore the provisions of the FLSA. Plaintiffs acknowledge, ingenuously, that they are not entitled to one penny of overtime pay under the FLSA but claim that they are entitled to that same pay under Title 5 alone. Plaintiffs’ argument ignores the reality of their complaint. Plaintiffs seek to recover for overtime allegedly due to them under the FLSA. Title 5 does not provide for overtime compensation during the 72 hour work week, so plaintiffs’ claim is obviously based upon the FLSA. Ignoring that, plaintiffs wish to pick and choose among the provisions of the FLSA while denying that the whole statute should be considered. The Court will not allow such a piecemeal approach to statutory construction.

The four “leave with pay” statutes guarantee to plaintiffs while on annual leave, sick leave, court leave or military leave, the payment of all compensation to which they are entitled. There is no provision under Title 5 or under the FLSA which entitles plaintiffs to overtime pay for hours not worked. Plaintiffs’ arguments are without merit, and defendants are entitled to judgment as a matter of law.

Accordingly, plaintiffs’ motion for summary judgment will be denied and defendants’ motion for summary judgment will be granted.

       A much smaller number of federal firefighters work a sixty-hour week on a regularly scheduled basis, week in and week out.


source: Caselaw Access Project

license: Public Domain

text:
    Harriette McADOO v. John S. TOLL, et al.
    Civ. No. Y-82-1770.
    United States District Court, D. Maryland.
    Aug. 19, 1985.

      Roma J. Stewart, Chicago, Ill., and Samuel Hamilton, Silver Spring, Md., for plaintiff.
    Stephen H. Sachs, Atty. Gen. for the State of Md., Baltimore, Md., Frederick G. Savage, Asst. Atty. Gen., Baltimore, Md., and Susan J. Mathias, Asst. Atty. Gen., Baltimore, Md., for defendants.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

I. BACKGROUND

This case involves a claim of racial discrimination in employment. The plaintiff, Dr. Harriette McAdoo originally brought this action against the University of Maryland, its President Dr. John S. Toll, and other officials of :the University pursuant to 42 U.S.C. § 1981. Plaintiff subsequently amended her complaint to include claims under 42 U.S.C. §§ 1983 and 2000e et seq. (Title VII).

According to the amended complaint, Dr. McAdoo, a black female, alleges she was wrongfully denied a position as a full professor in the University’s College of Human Ecology because of race after having applied and been considered for an appointment in the Department of Family and Community Development. Plaintiff alleges that she received a unanimous recommendation from the search committee and subsequently an oral offer of employment before eventually being rejected for a full professorship. Plaintiff later learned that a white female who had just received her Ph.D. degree was appointed to a position in the department as an assistant professor. She alleges that the Department of Family and Community Development has never had a full black professor and that the department has never before rejected an applicant unanimously recommended by the search committee.

II. PROCEDURAL HISTORY

This case is marked by a somewhat sporadic procedural history. Plaintiff originally brought suit under 42 U.S.C. § 1981 after her formal rejection by the University. She also filed a complaint under Title VII with the Equal Employment Opportunity Commission (“EEOC”) in August, 1980, some two months after having been formally notified of her rejection by John R. Beaton, Dean of the College of Human Ecology. The EEOC investigated the complaint and found reasonable cause to believe plaintiffs charge to be true in September, 1981. Plaintiff instituted this action for damages, injunctive and declaratory relief in June 1982, and amended her complaint in August, 1982 following the issuance of a right to sue notice by the Attorney General. Thereafter, defendants moved to dismiss the amended complaint, and in the alternative, moved for summary judgment.

Plaintiffs amended complaint includes her original claims under § 1981 as well as new claims under § 1983 and Title VII. . It names as defendants: the University of Maryland; John S. Toll, President of the University; Robert Gluckstern, Chancellor of the College Park Campus; William Kirwan, Vice Chanceller for Academic Affairs at the College Park Campus; George P. Funaro, Provost of the Division of Human and Community Resources; John R. Beaton, Dean of the College of Human Ecology; and William J. Hanna, Chairman of the Department of Family and Community Development.

On August 7, 1984, this Court denied defendants’ motion to dismiss plaintiffs Title VII claims holding that these claims could be maintained against all defendants. McAdoo v. Toll, 591 F.Supp. 1399, 1404 (D.Md.1984) (Young, J.). However, the Court also held that monetary damages were not recoverable under §§ 1981 and 1983 and dismissed the claims brought pursuant to these sections against defendants Toll, Gluckstern, and Kirwan. Id., at 1404-OS. The import of the Court’s opinion was that, if successful, plaintiff would only be entitled to recover back pay and reinstatment, less her interim or potential earnings.

III. APPLICABLE LAW

TITLE VII

This case involves a claim of disparate treatment on account of race. Disparate treatment cases naturally involve intentional discrimination and therefore intent is an inherent element in any cognizable disparate treatment claim under Title VII. See Allen v. Prince George’s County, Maryland, 538 F.Supp. 833, 848 (D.Md. 1982). Such cases require that a Title VII plaintiff initially establish a prima facie case of discrimination by satisfying the four requisites enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), except where discrimination can be proven by direct evidence. E.g., Bell v. Birmingham, 715 F.2d 1552, 1556-57 (11th Cir.1983) (manager’s statement that he would not allow plaintiff to work in the washroom because if he did “every woman would want to” was direct evidence of discrimination which made McDonnell Douglas analysis unnecessary); Lee v. Russell County Board of Education, 684 F.2d 769, 774-75 (11th Cir.1982) (testimony that employment actions taken by administration were racially motivated was direct evidence of discrimination).

To prevail under the three step analysis in McDonnell Douglas, the plaintiff must first establish: (1) that she is a member of a protected group; (2) that she applied for a job for which she was qualified; (3) that she was rejected; and (4) that the employer continued to seek applicants. McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25. The burden then shifts to the employer to articulate some legitimate non-discriminatory reason for rejecting the plaintiff. Thereafter, the plaintiff may show that the reason offered by the defendant is merely a “pretext” for what actually was intentional discrimination. Id. Resolving the issue of pretext involves an often dispositive inquiry into whether defendant’s non-discriminatory reason is the real reason for the plaintiff’s treatment or whether it is in fact being offered to coverup or to obscure racial discrimination. Defendant’s non-discriminatory reason for taking it’s action need not be important or sound; it need only be the true reason. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981). However, unsound or marginal reasons may be viewed skeptically by the finder of fact when deciding the issue of pretext. Once the plaintiff has satisfied his or her burden of proving pretext, plaintiff is entitled to prevail on the merits unless the defendant can show by clear and convincing evidence that an applicant other than the plaintiff would have been selected for reasons other than prohibited discrimination if the discrimination had not occurred. See Patterson v. Greenwood School District 50, 696 F.2d 293, 295-96 (4th Cir. 1982). Otherwise, the burden of persuasion ultimately is on the plaintiff to establish his or her case by a preponderance of the evidence. Chisholm v. United States Postal Service, 665 F.2d 482 (4th Cir.1981).

SECTION 1981

Title 42 U.S.C. § 1981 protects persons from racially motivated deprivations of various enumerated rights, including the right to be free from racial discrimination in employment. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975); Allen, 538 F.Supp. at 856 (D.Md. 1982). This section requires proof of discriminatory motive and intent in order for a plaintiff to recover, Gay v. Waiters’ and Dairy Lunchmen’s Union, 694 F.2d 531, 536 (9th Cir.1982); Robertson v. Maryland State Department of Personnel, 481 F.Supp. 108, 112 (D.Md.1978), aff’d per curiam, 615 F.2d 1357 (4th Cir.1979), as it reaches only purposeful discrimination. General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 389, 102 S.Ct. 3141, 3149, 73 L.Ed.2d 835 (1982). Thus, a plaintiff must prove that the deprivation at issue was intentional and motivated by racial animus in order to be entitled to relief under § 1981.

The prior discussion concerning plaintiff’s establishment of a prima facie case under Title VII is applicable to an analysis of discrimination claims under § 1981. Allen, 538 F.Supp. at 856. Given the similarities of the two statutes, it is appropriate to apply the McDonnell Douglas test to § 1981 claims. Gay, 694 F.2d at 539. “[T]he evidence establishing a prima facie case under the former statute (Title VII) suffices to establish a prima facie ease under the latter (§ 1981).” Scarlett v. Seaboard Coastline R. Co., 676 F.2d 1043 (5th Cir.1982) (citing Baldwin v. Birmingham Board of Education, 648 F.2d 950, 954-55 (5th Cir.1981); see Allen, 538 F.Supp. at 856. Title VII and § 1981 are overlapping, but independent, remedies for racial discrimination in employment. Johnson, 421 U.S. at 461, 95 S.Ct. at 1720. In short, a prima facie case under § 1981, like a prima facie disparate treatment case under Title VII, requires proof of intentional discrimination and the focus of the judicial inquiry is whether the plaintiff has proven, by a preponderance of evidence, facts from which the Court must infer, absent rebuttal, that the defendant was motivated by discriminatory animus.

Under both statutes, the court must make a sensitive inquiry into the direct and circumstantial evidence of discrimination offered by the plaintiff in order to determine if the facts so proved allow § 1981 claimants to avail themselves of Title VII discriminatory treatment standards in proving a prima facie case.

Gay, 694 F.2d at 538 (citing Hudson v. IBM Corp., 620 F.2d 351, 354 (2d Cir.), cert. denied, 449 U.S. 1066, 101 S.Ct. 794, 66 L.Ed.2d 611 (1980)).

The applicability of the McDonnell Douglas standards beyond the prima facie case in a § 1981 disparate treatment claim is unclear and often not reached. See, e.g., Gay, 694 F.2d at 539 (court refused to hold that Burdine and McDonnell Douglas had to be followed in all aspects of § 1981 cases because a plaintiffs burden could differ in some respects but the court did not address the issue). Nonetheless, the two statutes are substantially similar and the Court will not apply divergent elements of proof or different standards for evaluating Title VII and § 1981 claims absent some significant dissimilarity in the purposes behind the invocation of the relevant statutes. Thus, the previous discussion of claims asserted under Title VII is applicable to plaintiffs § 1981 claims. Allen, 538 F.Supp. at 857. SECTION 1983

Plaintiff also seeks relief pursuant to 42 U.S.C. § 1983 for defendants’ refusal to appoint her to a position as full professor. Section 1983 provides a remedy for state action that purposefully discriminates on the basis of race in violation of the equal protection clause of the Fourteenth Amendment. See, e.g., Flores v. Pierce, 617 F.2d 1386, 1388 (9th Cir.1980). The protection afforded by § 1983 includes relief from discriminatory employment practices of public employees. See Whiting v. Jackson State University, 616 F.2d 116, 121-22 (5th Cir.1980). Furthermore, the right to equal protection with regard to public employment does not depend on the existence of a property interest in that employment. Poolaw v. City of Anadarko, 660 F.2d 459, 462 (10th Cir.1981).

Allegations of discriminatory employment practices which are sufficient to support a claim for relief under 42 U.S.C. § 1981 are also sufficient to support a claim under § 1983. Id. at 462. Insofar as it is used as a parallel remedy for transgression of § 1981 and Title VII rights, the basic elements of the causes of action do not differ appreciably from those discussed above, Whiting, 616 F.2d at 121, except that liability under § 1983 is conditioned on a showing of some personal involvement or participation in the denial of civil rights. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, supervisory liability cannot automatically be ruled out in a § 1983 action. A supervisor or supervising body may be held liable under § 1983 for failure to adequately supervise or control, Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1133, 1143 (4th Cir.1982), or where the supervising defendant is responsible for a policy or custom which results in the deprivation of rights. Wellington v. Daniels, 717 F.2d 932, 935 (4th Cir. 1983).

IV. PLAINTIFF’S DISPARATE TREATMENT CLAIMS

Under the McDonnell Douglas test as applied to the facts of this case, plaintiff has met her initial burden of establishing the essential elements of McDonnell Douglas—she is a black female; she was qualified and was seriously considered for the available professorship; she was not hired by the University in 1980 or anytime thereafter; and the University continued to seek applicants after her rejection. Defendants have offered three legal, non-discriminatory reasons for denying plaintiff an appointment as a full professor at the University and plaintiff has argued and presented evidence intended to show that defendant’s articulated reasons for rejecting her are a mere pretext for what she alleges was racial discrimination.

This case, like many disparate impact cases, turns on the issue of pretext. The Court finds on the basis of the record that the plaintiff has not met her burden of proving pretext by a preponderance of the evidence. Defendants have argued throughout this litigation that plaintiff McAdoo was denied a faculty appointment because: (1) she did not submit recommendations from full professors unassociated with the University of Maryland; (2) her record of publications was determined to be “qualitatively and quantitatively limited;” and (3) she did not receive the unqualified approval of the full professors within the University’s Department of Family and Community Development.

The Court finds that these were the reasons the plaintiff was denied an appointment. However, the Court does not join in the defendants’ ultimate assessment of Dr. McAdoo’s qualifications nor does it seek through this decision to legitimate or condone the process by which defendants reached their decision to reject the plaintiff’s application. Although marginal reasons offered to justify defendants’ actions may be probative with regard to the issue of pretext, defendants’ reasons for their actions need not be important or sound; they only need be the true reasons. Burdine, 450 U.S. at 257, 101 S.Ct. at 1095. The Court may not find for the plaintiff simply because it regards the defendants’ reasons as unsound; nor can the Court substitute its judgment for that of the defendants. It must limit its review to determining whether defendants’ stated reasons for taking action adverse to the plaintiff are the real reasons for such action.

After a review of the record, the Court finds that the plaintiff has failed to show by a preponderance of evidence that defendants’ refusal to appoint her to the faculty was motivated by racial animus, and therefore, she is not entitled to recovery. Chisholm v. United States Postal Service, 665 F.2d 482 (4th Cir.1981). There is sufficient evidence in the record to support this determination. The record is replete with memoranda in which various defendants express a need to both attract and retain highly qualified minority scholars to improve the quality and image of the University. Defendants’ testimony also corroborated these concerns.

The undisputed testimony of several witnesses for the defendants and plaintiff indicate that there was a particularly heavy emphasis placed on the publication records of applicants for full professorships in hiring and promotion decisions following President Toll’s expression of his intention to make the University of Maryland one of the country’s premier public universities. The record reflects that the faculty in general, and those evaluating candidates for promotion and appointment in particular, were especially conscious of this increased emphasis on publications. Search committee members and other decision makers in the appointment process were also cognizant of the fact that candidates were to be evaluated and considered in light of the standards applicable in the top ten departments in the candidate’s particular field at the country’s leading public universities.

Defendants’ witnesses expressed near unanimous concern regarding the quantity of the plaintiff’s publications in scholarly books and journals. Defendants’ expert witness in the field of qualifications, Dr. Ruth Young, the former Acting Vice President for Academic Affairs and current Dean of the University of Maryland School of Social Work testified that Dr. McAdoo’s publication record at the time she was considered for a faculty position was not sufficient to qualify for a full professorship under the more stringent, albeit imprecise standards initiated by President Toll. Ironically, Dr. Young, among others, admitted in her testimony that she would not have qualified for an appointment as a full professor had the standards by which Dr. McAdoo’s publications record was judged been in effect at the time of her own candidacy. However, Dean Young also noted that many applicants for full professorships at the University have been rejected on the basis of their publication records since the University began heavily emphasizing candidates’ “scholarly output” in appointment decisions.

The record also reveals that the plaintiff ultimately failed to receive the unqualified recommendation of the full professors in the Family and Community Development Department, a requisite for the approval of any candidate for appointment as a full professor. Professor Remie Clignet, a full professor in the department gave the plaintiff a decidedly negative evaluation. Professor Ned Gaylin, another full professor in the department, ultimately was unable to give Dr. McAdoo an unqualified recommendation. Professor Clignet expressed a concern about the plaintiff’s scholarly status in light of her publications record while Professor Gaylin indicated that he had some reservations about the plaintiff’s “methodolical strength.” Finally, Dr. William Hanna, Chairman of the Family and Community Development Department, testified that he found the plaintiff’s publication record to be “very thin.” Defendant Hanna also testified that Dr. McAdoo’s strengths did not coincide with the department’s more pressing needs; the plaintiff’s strength was in the area of family studies and the department’s greatest need was in the area of social policy analysis. Nonetheless, Professors Hanna and Gaylin both indicated in their testimony that they would have looked more favorably upon the plaintiff’s candidacy had Professor Hanna been successful in securing additional funding to enable the department to hire Dr. McAdoo and an additional person with expertise in theory and analysis.

Finally, the Court concludes from the credible evidence and testimony in the record that defendants also relied upon the fact that the plaintiff did not submit recommendations from full professors outside of the University. While the Court finds this to be a genuine, non-discriminatory basis upon which defendants legally relied in rejecting the plaintiff’s candidacy for a full professorship, it must note that the suspect nature and questionable propriety of this reliance is all too characteristic of the entire process in which plaintiff McAdoo’s application was reviewed and evaluated. Defendants’ failure to contact full professors and experts outside of the University who could speak about Dr. McAdoo’s work and stature in the field, and whose names were available to the defendants, the failure to conduct a professional and systematic review of the plaintiff’s application, and the failure to follow established procedures has undoubtedly created or at least contributed to the suspicion that has arisen concerning defendants’ motives in denying plaintiff an appointment as a full professor. Unthoughtful and premature comments by certain defendants critical of the plaintiff and her work also have unnecessarily contributed to the climate of distrust from which this litigation was spawned. Such practices are not likely to engender confidence and project a favorable image of the University, and its programs and departments in academic circles generally, and in the minority community in particular. Defendants’ conduct, although not intentionally discriminatory, simply does not live up to the professional standards to which the University aspires.

In light of the foregoing discussion, the Court concludes that Dr. McAdoo was denied a faculty appointment at the University of Maryland for academic and not racial reasons. Therefore, plaintiff has failed to establish pretext and her claims under Title VII, §§ 1981 and 1983 must be denied. As noted above, the merits of hiring decisions must be left to the administrators ultimately responsible for them. This Court’s review is limited to a determination of whether the plaintiff was discriminated against because of race. Finding no racial discrimination, judgment will be entered for defendants.