Toney v. Block

Although I agree with the result reached by the majority in this case, I would affirm the district court on the ground that the court was not clearly erroneous in holding that appellee had proved by clear and convincing evidence that appellant would not have been promoted even absent discrimination.

After Toney filed a formal complaint of racial discrimination, a hearing was conducted by an EEO Complaints Examiner. She recommended a finding of “discrimination.” Findings and Recommended Decision, In re Toney, at 4 (Jan. 28, 1978), Appendix (App.) at 9. Based on this finding the Examiner…