Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 9 EPD ¶10,221, Manuel Mercado, Plaintiff v. William J. Middendorf, III, et al., Defendants., (June 17, 1975), (Jun. 17, 1975)

Manuel Mercado, Plaintiff v. William J. Middendorf, III, et al., Defendants.

United States District Court, District of Columbia. No. 74-1769, June 17, 1975

Title VII--Civil Rights Act of 1964

National Origin Discrimination--Federal Employee--Exhaustion of Administrative Remedies.

--A civilian employee of the U.S. Navy’s claim that he was denied promotion on the basis of his national origin must be rejected where it was shown that he was denied a best qualified rating on the basis of objective job-related criteria. Affirmative action policies relating to hiring of Spanish-surnamed individuals were inapplicable since the minority preference was triggered only for employees rated as best qualified. Allegations that a double standard was used in rating employees for upgrading were unsupported and were contradicted by the high average grade level for Spanishsurnamed employees at the facility in question. 42 U.S.C. Sec. 2000e-16(a) .

Back reference.-- ¶1325 .

John W. Dixon and Donald E. Cope, Washington, D.C., for Plaintiff.

Thomas G. Corcoran, Jr., Washington, D.C. for Defendants.

GREEN, D.J.: This case is presently before the Court on plaintiff’s Motion for Summary Judgment and defendants’ Motion to Dismiss, or in the Alternative for Summary Judgment. Jurisdiction is based upon 42 U.S.C. §2000e-16(c) (Supp. II, 1972). This action seeks review of a final decision of the Department of the Navy dated October 31, 1974, which concluded that discrimination because of national origin, prohibited by 42 U.S.C. §2000e-16(a) (Supp. II, 1972), was not present in the failure of the Navy to promote Mr. Mercado to any of the GS-13 positions for which he had applied or to appoint him to any Negotiated Contract Boards.

The plaintiff is a 48-year-old citizen of the United States of Spanish origin who has been a civilian employee of the United States Navy since March 1964. Throughout his employment, he has been a GS-12. He is rated by the Civil Service Commission under Announcement No. 408 as being qualified for the position of GS-13 General Engineer. The vast majority of his employment has been as a General Engineer in the Specifications Branch of the Chesapeake Division, Naval Facilities Engineering Command, Washington, D.C. (NAVFAC). From October 1964, to October 1965, plaintiff worked in the Contracts Division. At another time, plaintiff was given a ninety-day trial assignment in the Maintenance Division. Plaintiff worked as an engineer for the Department of the Navy in Thailand from October 1965, to August 1969.

Since 1972, plaintiff has filed applications for jobs rated at the GS-13 level in response to four separate vacancy announcements. In each case plaintiff was not selected for promotion. The jobs are:

1. Vacancy Announcement 25-72, issued April 3, 1972, for two positions of General Engineer, Design Division. Plaintiff was one of thirteen applicants.

2. Vacancy Announcement 27-72, issued August 16, 1972, for the position of General Engineer in the Navy Damage Support Office. Plaintiff was one of seventeen applicants.

3. Vacancy announcement 100-72, issued September 18, 1973, for three positions of Supervisory Engineer, Construction Division ROICC. Plaintiff was one of eleven applicants.

4. Vacancy Announcement 112-73, issued October 13, 1973, for the position of Supervisory Civil Engineer, Construction Division. Plaintiff was one of three applicants from NAVFAC. An applicant from outside the agency was appointed.

It was after the plaintiff was denied promotion in number 112-73 that he began the process of administrative review which culminated in the filing of suit in district court. On December 3, 1973, plaintiff asked to see an Equal Employment Opportunity Counselor, and specifically requested the aid of Mr. Eloy R. Villa, a Spanish-surnamed citizen also employed at NAVFAC. Subsequently, Mr. Villa interviewed the plaintiff, who alleged that he had been discriminated against in not being promoted even though he had applied for numerous GS-13 positions. Mr. Villa collected pertinent documents, including plaintiff’s standard personnel form SF-171, and conducted a series of interviews with various individuals in the management hierarchy of Chesapeake Division. On January 21, 1974, Mr. Villa consulted with the plaintiff and told the plaintiff that he could find no real basis for the filing of an EEO complaint. Plaintiff rejected the findings of Mr. Villa and was sent a Notice of Final Interview. Thereafter, on February 5, 1974, plaintiff filed a formal discrimination complaint. See 5 C.F.R. §713.214(a)(1) (1975). The complaint alleges discrimination from August 1969, because of his national origin, in his non-selection for promotion to the GS-13 level, in the selective interviewing of plaintiff alone for the GS-13 Supervisory Civil Engineer’s position on December 11, 1973, and in denying the plaintiff the opportunity to attend professional board meetings. Plaintiff submitted a lengthy refutation of Mr. Villa’s report on February 14, 1974. On March 4, 1974, Mr. Charles V. Smith was assigned to make the official investigation of the EEOC complaint. As part of his investigation, he explored the rationale used by the various selection panels in filling the positions in question, interviewed the selection panel members who evaluated the complainant, and collected statistical data. His final report of April 4, 1974, found no discrimination. On April 12, 1974, the Commanding Officer, Chesapeake Division, informed the plaintiff that there was nothing in the record to substantiate a complaint of discrimination. Plaintiff requested a hearing before the Civil Service Commission. The Civil Service Commission requested further investigation, and a supplemental investigation by Mr. Smith was concluded on June 12, 1974, with the same finding of no national origin discrimination.

Again plaintiff requested a hearing and on July 16 and 17, 1974, a hearing was held before EEO Complaints Examiner William Carroll. In a report dated August 30, 1974, Mr. Carroll found that the clear weight of the evidence supported a finding that discrimination because of national origin was not the basis for the plaintiff’s non-selection for the positions at issue. The Secretary of the Navy concurred in that finding on October 31, 1971, and the decision with notification of plaintiff’s right to sue was transmitted on November 6, 1974. Plaintiff timely filed this action on December 4, 1975. See 42 U.S.C. §2000e-16(c) (Supp. II, 1972).

Plaintiff’s complaint alleges national origin discrimination since 1969. At each level in the administrative process since the EEO Counselor’s report in January 1974, four job positions were considered. This in and of itself is not sufficient to give this Court jurisdiction. A complainant must notify the Equal Employment Opportunity Counselor within 30 calendar days of the date of the matter causing him to believe he had been discriminated against or, if a personnel action, within 30 days of the effective date. 5 C.F.R. §713.214(a)(1)(ii)(1975). Plaintiff brought the non-selection for any of the positions announced in Vacancy Announcements 27-72, 100-73 and 112-73 to the attention of the counselor within the required 30-day period. He did not do so with respect to the positions announced in Vacancy Announcement 25-72. Therefore, the Court finds that plaintiff has failed to exhaust his administrative remedies with respect to a claim arising from the non-selection for those positions announced in Number 25-72, and that it lacks jurisdiction as to that claim. In his Motion for Summary Judgment and oral argument, plaintiff abandoned his claims for relief related to Vacancy Announcements 27-72 and 100-73. Plaintiff’s Motion for Summary Judgment at 4. While evidence of discrimination arising from any of these three vacancy announcements may be relevant to show a continuing practice, recovery, if any, will be limited to consideration of Vacancy Announcement 112-73.

The Court finds that the plaintiff has not sustained his claim of national origin discrimination. [1] Plaintiff urges several points which in his view cumulate to a Title VII violation. The Affirmative Action Plan for the Naval Facilities Engineering Command does not include specific action items directed at the equal employment opportunity of the plaintiff. The Upward Mobility program is directed at grades GS-9 and lower. Further, the programs do not recognize Spanish-surnamed individuals as a minority since those individuals comprise a statistically small porportion of the Metropolitan area population. The Court need not reach the merits of the agency’s decision to so limit its programs because the issue is the interface of the Affirmative Action Plan and the Merit Promotion Plan.

Plaintiff would have the Court impose upon the agency a system that promotes discrimination by providing for unequal treatment. As presently implemented, once individuals are rated equally as best qualified pursuant to the Merit Promotion Plan, notice is then given to the selection panel of the minority status of any of the applicants. Selection of those individuals is then encouraged. In the case at bar, plaintiff was never rated as best qualified for any of the jobs for which he applied. Preference based upon his minority status was never triggered. In Number 112-73, where a panel was not used, Mr. Robert Walsh, the selecting officer, chose an applicant with more construction experience than plaintiff. Plaintiff contends that his experience in Thailand was not properly taken into account. Even if plaintiff’s experience in Thailand is credited, the successful applicant had considerably more.

Plaintiff seeks to go behind the ratings of the panels to show national-origin discrimination on the part of two of the panel members for Job 25-72 and alleges that a “double-standard” was used in rating plaintiff against Mr. Baxter, the successful applicant. These allegations have not been substantiated. The record shows clearly that Mr. Wood and Mr. Caldwell applied objective job-related criteria in rating plaintiff.

A survey of the supervisory evaluations of plaintiff considered by the Advisory Selection Board for Job 25-72 does not support plaintiff’s contention that the Board used a double standard in rating plaintiff against Mr. Baxter. Looking at the supervisory evaluations as a whole, the Board members made a reasonable assignment of points to plaintiff and Mr. Baxter in the contested categories. Further, as demonstrated at oral argument, if the number of additional points plaintiff claims were attributed to him, and Mr. Baxter’s total were lowered, the same comparative result would obtain. Mr. Baxter would remain in the best qualified category and Mr. Mercado would be in the qualified category. Mr. Josalo Farias, a Spanishsurnamed American citizen, was promoted to Branch Chief of the Cost Estimating Branch, at NAVFAC, GS-13, while a subordinate of Mr. Wood and indirectly of Mr. Caldwell, the two persons plaintiff chiefly accuses of discrimination. Mr. Farias testified that he had experienced no discriminatory treatment while working under them.

The investigator’s report demonstrates that the average grade level for professional and sub-professional Spanish-surnamed Americans at the Chesapeake Division is higher than for all professionals and subprofessionals there. The Court agrees with the defendants that the points raised by the plaintiff suggest at most personal animosity or poor personnel practice, not discrimination. As Mr. Eloy Villa stated at the conclusion of the initial investigation, a full and frank discussion between Mr. Mercado and his supervisors could be constructive and become a useful first step in forging a strong relationship of mutual trust and appreciation. The Court suggests that such a discussion be held promptly.

Judgment will therefore be entered for defendants.

Judgment

This matter came before the Court on plaintiff’s Motion for Summary Judgment and defendants’ Motion to Dismiss or in the Alternative, for Summary Judgment. It appearing that there exists no genuine issue of material fact, and it further appearing that defendants are entitled to judgment as a matter of law, and in accordance with the Memorandum issued with this Judgment, it is by the Court, this 16th day of June 1975,

Ordered that plaintiff’s Motion for Summary Judgment be and the same hereby is denied; and it is further

Ordered that defendants’ Motion for Summary Judgment be and the same hereby is granted; and it is further

Ordered that judgment be entered for the defendants.