c284:No. 79-1877

MacKINNON, Circuit Judge
(dissenting).
Congress intended the Civil Rights Act to protect against specified forms of employment discrimination — discrimination “because of” the employee’s membership in a protected class, 42 U.S.C. § 2000e-2, and discrimination “because” the employee has engaged in protected activity, 42 U.S.C. § 2000e-3. The Act does not protect an employee from a 11 discrimination simply because he happens to belong to a protected class or happens to have engaged in protected activities. In the instant case the majority orders attorney’s fees paid under the Civil Rights Act to an employee in the absence of any specific finding that he has suffered any discrimination prohibited by the Act.
The relevant findings are in fact to the contrary. The Complaints Examiner found that supervisor Bednar
resented the time complainant [Smith] spent performing his duties as an EEO counselor, not because of antipathy for the EEO program, but because of his inability to hold complainant accountable for all his time and efforts while under his supervision.
(Examiner’s Findings, supra note 24, at 2-3 (emphasis added).)
The Secretary of the Navy concurred “in the findings, recommended decision, and recommended corrective action of the Complaints Examiner.” (Secretary’s Decision, supra note 11, at 3 (emphasis added).) The district court, after a trial de novo, essentially adopted the Secretary’s findings: “In this ease there has been no finding of discrimination with respect to any of defendant’s actions.... The sole finding in favor of plaintiff was that his supervisory evaluation reflected an improper consideration of his EEO duties . . . . ” (App. 27a.)
This language reflects that this case involves an ordinary judgment of an employee’s work based upon the supervisor’s view that the employee (Smith) was spending too much time on collateral activities and insufficient time on his principal duties as an electronics engineer. Such a case is completely outside the Civil Rights Act and this court has no authority to make its own findings. If the findings are incomplete, the court should remand for a specific finding as to whether there was a reprisal based on racial discrimination in any respect.
The majority asserts that the “plain language of the statute . . . specifically forbids the penalization of participation in protected activities.” Majority Opinion at note 63. It then refers to the section of the statute making it unlawful
for an employer to discriminate against any of his employees * * * because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3 (emphasis added). This section does not have the breadth the majority would ascribe to it. In any event the majority has failed to show that Smith was penalized for engaging in protected activities.
Section 2000e-3 appeared in the original Civil Rights Act of 1964 (78 Stat. 257), which applied only to private employers. Read in the context in which it was written, section 2000e-3 evidently claims to protect employees who have opposed their employer in a civil rights case by engaging in the activities the section describes. When the Act was amended in 1972 to apply to employees “in military departments . . . [and United States] executive agencies . . . [etc.]” (86 Stat. Ill, codified in 42 U.S.C. § 2000e-16), the pertinent language of section 2000e-3 as quoted above was not altered in any respect. The application of section 2000e-3 is thus influenced by the earlier expressed congressional intent to shield from retaliation those employees who have risked their employer’s displeasure by publicly opposing the employer in civil rights claims. This provision of the Act was not designed to protect those, such as EEO counselors, whose own employer, the United States, has assigned them to work on civil rights matters, short of some showing of animus based on the race, color, sex, religion or national origin of the affected employee. Mere participation in EEO work is insufficient.
Be that as it may, the majority errs in suggesting that Smith was “penalized] [for] participation in protected activities.” The penalty of the adverse supervisory appraisal was imposed not because of Smith’s support of EEO claims but because he appeared to be spending too much time away from his principal job as an engineer. Supervisor Bednar believed Smith missed more work deadlines than did other employees (Tr. 226) and that the duration of his absences from work exceeded the 25% of his working hours that he was authorized to devote to EEO work. (Tr. 279.) This criticism of the quality and quantity of Smith’s work cannot be transformed into a Title VII violation, when there is no finding that Bednar in evaluating Smith’s work was attempting to frustrate EEO efforts to stop discrimination based on race, color, sex, religion or national origin. The complaints examiner found that the supervisor displayed no “antipathy” toward EEO in general and there is no taint whatsoever that Bednar was motivated by any anti-EEO animus. Moreover, there is no finding that Bednar retaliated against Smith for any particular exercise of protected activity.
Thus, Smith’s supervisory evaluation was based upon what appeared to be an insufficient attention to his principal job as an engineer, and not upon the fact that the collateral activity detracting from his job performance was EEO activity. The complaints examiner explained: “Mr. Bednar’s appraisal resulted from his frustration and resentment at the loss of control he had over complainant during the time he spent performing EEO duties . . . . ” (Examiner’s Findings, supra note 24, at 3.) From this the majority distills a finding that “Bednar had penalized Smith for his work as an EEO counselor.” Majority Opinion at 5. Yet, had Smith been performing other employer-authorized work, work for some other outside project, his treatment by his supervisor, insofar as the findings reveal, would have been just the same. If the majority’s theory is correct no EEO employee could be disciplined for inefficiency in doing EEO work because, as with Smith, they could claim they were engaged in protected EEO activity. But one engaged in EEO work does not acquire immunity from being treated as a normal government employee with respect to the performance of his work.
Moreover, if the majority opinion were good law, no employee with collateral EEO responsibilities could be disciplined for inefficiency, loafing, insubordination, failure to meet work deadlines or other employee deficiencies if he could attribute his inadequacies to the demands of his EEO work. But that is not enough; there must be some specific finding that the employer discriminated “because” the employee chose to engage in central activities protected by the Civil Rights Act. E. g., Pendleton v. Rumsfeld, 628 F.2d 102 (D.C.Cir.1980) (EEO counselors can be disciplined for actively participating in an unauthorized disruption of supervisor’s office even though the occasion was a demonstration against racial discrimination); Jeffries v. Harris County Community Action Ass’n, 615 F.2d 1025, 1036 (5th Cir. 1980) (employee may be disciplined for surreptitious copying of agency records, even if the reason was to publicize unlawful employment practices); Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222, 230 (1st Cir. 1976) (“employee does not enjoy immunity from discharge for misconduct merely by claiming that at all times she was defending the rights of her sex by ‘opposing’ discriminatory behavior”). No finding of such a discriminatory intent is present in this case, and, what is fatal to the majority decision, there is an express finding to the contrary.
Legitimate civil rights cases are harmed, rather than aided, when a court transforms what appears to be an ordinary case of employment discrimination into a Civil Rights Act violation. Such overreaching to find civil rights violations when a minority employee is adversely appraised solely for work related deficiencies creates opposition from fair minded people to legitimate civil rights cases. I cannot interpret the statute to find that “protected activity” extends to protecting an employee who spends too much time in EEO work away from his principal job to the detriment of his regular work.
The court also is using this case as a vehicle to attempt to write law in an area that was never briefed or argued on appeal. For the foregoing reasons I therefore dissent.

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