The D.C. Court of Appeals has overturned one of the largest monetary awards ever made by the D.C. Commission on Human Rights and struck down its first order for an affirmative action program saying that the commission had no rights to order those remedies under the law at the time.
In a decision critical of the commission's handiwork, the court struck down the commission's actions but not their findings in the case of Sally Krause Marshall of 2704 36th St. NW, a former researcher for the Communications Workers of America. The commission's findings were not clear enough to either strike down or uphold, the court said.
Marshall had charged the union, whose members are mainly women, with sex discrimination for failing to consider her for a promotion. The commission had upheld her charges and ordered her to be paid $17,000, which she now cannot collect. At the same time, the commission had ordered the CWA to develop immediately an affirmative action plan for women and minority employees.
"We've wasted another three years," said Marshall, who said she was not surprised by the decision.
Marshall filed her complaint in 1972, before adoption of a District law that allows the commission to award monetary damages and order affirmative action plans. Because of the timing of the complaint, it had to be pursued under the old law, which made no such provisions, the court said.
As for whether Marshall was actually-discriminated against, the court sent the case back to the commission saying that because its findings were "inadequate" that it was impossible to determine whether they should be upheld or overturned. Marshall is now labor relations officer for the Bureau of Engraving and Printing.
The commission had found in its decision that Marshall had been discriminated against "all because she was a woman." Marshall worked for the union's research and development department for seven years in "an atmosphere of discrimination based on sex," according to the commission. Although qualified by education and experience, she was not considered for promotion to field research economist, a position for which she trained others, the commission said.
The court did not say that the commission's findings were wrong but that "they do not, as they should, resolve the basic issues of fact raised by the evidence . . . ." The facts were disputed, but "the commission's findings do not resolve these sharply contested issues in a manner which allows fro meaningful review" and are not precise, the court said.
"It's not the first decision that they've criticized that way," said A. Franklin Anderson, deputy director of the city's office of human rights. Anderson said the criticism reflected the high standards of the court, not sloppiness in the commission's decision.
"It wasn't that it was a totally incompetent job of writing a decision," said Anderson, who said that then commissioner Willie Leftwich, an attorney, had simply adopted an order proposed by Marshall's attorney, Judy Lyons Wolfe, as the commission's order.
"It was cut-and-paste job," said Leftwich, who said he recalled that he used some parts of Wolfe's proposed order and some parts of the order proposed by the CWA. Because of budgetary problems the commission would hold hearings for a few days, adjourn, and then hold more hearings when they time and staff allowed, he said. "I don't doubt that the findings were disjointed."
The courts are imposing a "strict technical requirment on the commission," said Anderson, who said they were requiring "that the basis of the decision be rationalized in the decision itself."
"I'm sorry that Mrs. Marshall is, in effect, right back where she was three years ago," said Leftwich, recalling how long the case has dragged on. He said that Marshall's lawyer Wolfe had either just had a baby or was pregnant when the case was in its early stages. "I saw that kid the other day, and it's a big kid now," he said.
The findings "will be gone over more thoroughly to correct whatever defects there are," said commission chairman J. Leon Williams.
Marshall said that she wanted the commission to reissue their findings to "clean up the record," but that she plans now to pursue her case in federal court under national equal employment opportunity laws. She had filled suit in federal court charging the union with discrimination but that suit has been held in abeyance while a local remedy was sought.
Now that the D.C. Court of Appeals has held that the financial award and the order for an affirmative action program were invalid, she must go to federal court for any remedy.
CWA attorneys had argued in the D.C. Court of Appeals that Marshall shoud not be allowed to pursue the case at both the local and the federal level, but the court said she could.
After her five years experience with the D.C. Office of Humam Rights, Marshall said she was disappointed. "I'm very discouraged to think that anybody in this jurisdiction who has to deal with them is not having his rights protected," said Marshall. She said that the time consumed in pursuing her case and the "inability to provide good advice" on the part of the office of human rights were major hurdles.
She filed her complaint with the Office of Human Rights in June, 1972. The commission held three days of hearings ending in October, 1973. About a year later, in October, 1974, the commission issued a proposed order, which was finally adopted around the first of 1975.
"The whole legal process is not something you can get overnight justice in," said Anderson, of the Office of Human Rights. He pointed out that the D.C. Court of Appeals had the case before them for almost two years before acting.
"1972 to 1976 is a very long time," said Williams. The public is entitled to more prompt action, and new procedures have been designed that will allow the commission to move more swiftly, he said. Williams said that part of the problem is that commissioners serve as unpaid volunteers.