Coleman v. Darden

• Decision Date: 17 May 1979
• Docket Number: No. 77-1133,77-1133
• Citation: 595 F.2d 533
• Parties: 19 Fair Empl.Prac.Cas. 137, 19 Empl. Prac. Dec. P 8980, 1 A.D. Cases 49 Michael E. COLEMAN, Plaintiff-Appellant, v. George DARDEN, Individually and in his representative capacity as Regional Director of the Denver Litigation Center for the Equal Employment Opportunity Commission, Annie Clay, Individually and in her representative capacity as Administrative Officer for the Equal Employment Opportunity Commission, and John Ford, Individually and in his representative capacity as Senior Research Analyst for the Equal Employment Opportunity Commission, Ethel Bent Walsh, Individually and as Acting Chairman of the Equal Employment Opportunity Commission, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 533

595 F.2d 533

19 Fair Empl.Prac.Cas. 137, 19 Empl. Prac.

Dec. P 8980,

1 A.D. Cases 49

Michael E. COLEMAN, Plaintiff-Appellant, v. George DARDEN, Individually and in his representative capacity as Regional Director of the Denver Litigation Center for the Equal Employment Opportunity Commission Annie Clay, Individually and in her representative capacity as Administrative Officer for the Equal Employment Opportunity Commission, and John Ford, Individually and in his representative capacity as Senior Research Analyst for the Equal Employment Opportunity Commission, Ethel Bent Walsh, Individually and as Acting Chairman of the Equal Employment Opportunity Commission, Defendants-Appellees.

No. 77-1133.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Aug. 10, 1978.

Decided Feb. 23, 1979.

Rehearing Denied May 17, 1979.

Anthony F. Renzo of Engdahl & Renzo, P. C., Denver, Colo., for plaintiff-appellant.

Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Beatrice Rosenberg, Asst. Gen. Counsel, Sharyn L. Danch, Atty., E. E. O. C., Washington, D. C., for defendants-appellees.

Before SETH and LOGAN, Circuit Judges, and COOK, District Judge ^*.

H. DALE COOK, District Judge.

This case is before us on appeal from a final order of the United States District Court for the District of Colorado granting summary judgment in favor of the defendants-appellees (hereinafter referred to as "defendants"). In his complaint, the plaintiff-appellant, Michael E. Coleman (Coleman), alleged, Inter alia, that the defendants had discriminated against him because of a physical handicap in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 Et seq. and the Fifth Amendment to the United States Constitution. He sought review of the defendants' actions under those provisions and also under the Administrative Procedure Act, 5 U.S.C. § 701 Et seq. The District Court entered judgment in behalf of the defendants, holding that the Rehabilitation Act of 1973 did not create an implied private cause of action and that the At the time of the acts complained of, Coleman was a twenty-nine (29) year-old white male who became totally blind in 1960. Despite this handicap, he received an undergraduate degree from Louisiana State University in 1970 and a law degree from the University of Denver in 1974. From January 1, 1974 to January 1, 1975, Coleman was employed as a part-time case analyst by the Denver Regional Office of the General Counsel, Equal Employment Opportunity Commission (EEOC). Beginning on January 1, 1975, Coleman became a law clerk in the same office. In both positions, he was provided the services of a part-time reader, and his performance was entirely satisfactory. At the time he accepted the law clerk position, Coleman understood that he would be terminated if he was not admitted to the bar within fourteen (14) months. He did not gain the requisite bar admission and was terminated on March 1, 1976. The appropriateness of that termination has not been challenged.

undisputed facts did not demonstrate a violation of Coleman's Fifth Amendment Rights. This appeal followed.

In November of 1975, anticipating his termination, Coleman applied for a position as a research analyst in the Denver office of the EEOC. He was one of seven applicants whose names were referred to the Denver office for consideration. Defendants Clay and Ford were assigned the task of reviewing the applications and filling the position. They did not hire Coleman, choosing instead a female applicant who is not visually handicapped. Coleman filed a grievance with the EEOC but was advised that because there was no established procedure for handling grievances based upon handicap discrimination, his complaint would not be investigated. Following his unsuccessful attempt to proceed administratively, Coleman filed this suit in the District Court.

In view of the issues raised in this appeal, it is necessary to examine the primary duties and responsibilities of the jobs in issue, as set forth in the applicable position descriptions. The position of law clerk, from which Coleman was terminated for failure to gain admission to the bar, included the following duties and responsibilities: preparing drafts of opinion letters involving interpretations of Title VII; reviewing contracts for legal sufficiency; providing legal counsel and assistance in the preparation of briefs; drafting administrative regulations and examining regulations for conformance with the requirements of Title VII. (R.135-139)

The position description for research analyst, the job for which Coleman was not selected, reveals the following duties and responsibilities, among others: assisting in the analysis of the litigative potential of cases; researching and analyzing relevant case precedents and statistical and socio-economic data; reviewing and preparing material required to aid the attorney in litigating cases; developing work sheets for compilation of statistical data; interpreting computer formats and printouts; compiling and analyzing labor force data; evaluating seniority systems and testing patterns; assisting in the preparation of materials required for discovery and aiding in the preparation of remedial orders. (R.48-53)

There is a third position which, although not directly in issue here, is relevant in view of the claims made by Coleman. That position is paralegal specialist, the duties and responsibilities of which included the following: researching and analyzing legal decisions; compiling substantive information on statutes and legal instruments; preparing cases for civil litigation, including the collection, analysis and evaluation of evidence; analyzing facts and legal questions presented by personnel administering specific Federal laws and performing other paralegal duties requiring discretion and independent judgment in the application of specialized knowledge of particular laws. (R.92-93) The position description for paralegal specialist also contained the following physical requirement: "Ability to read without strain printed material the size of typewritten characters is required, corrective lenses permitted." (R.96) Neither the law clerk position nor the research analyst In assessing motions for summary judgment, we must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues, Stevens v. Barnard, 512 F.2d 876 (10th Cir. 1975), and pleadings and other documentary evidence must be construed liberally in favor of the party opposing the motion. Adickes v. S. H. Kress & Co.,398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Webb v. Allstate Life Insurance Co., 536 F.2d 336 (10th Cir. 1976); Stevens v. Barnard, supra. The burden is upon the moving party to show, beyond a reasonable doubt, the absence of a genuine issue as to any material fact. Adickes v. S. H. Kress & Co., supra; Mogle v. Sevier County School District, 540 F.2d 478 (10th Cir. 1976); Stevens v. Barnard, supra. However, under Rule 56(e) of the Federal Rules of Civil Procedure, once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Adickes v. S. H. Kress & Co., supra; First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968), Rehearing denied 393 U.S. 901, 89 S.Ct. 63, 20 L.Ed.2d 569 (1968); Brown v. Ford Motor Company, 494 F.2d 418 (10th Cir. 1974).

position specifically required the ability to read. In March of 1976, after the research analyst position in issue had been filled, that position was reclassified as a paralegal specialist position. The two positions thereby became one, and the position description became the same as that of the former research analyst. (R.130-134)

FIFTH AMENDMENT CLAIM

Coleman contends that the defendants deprived him of his rights to due process under the Fifth Amendment by creating an irrebuttable, or conclusive, presumption that he could not satisfactorily perform the job of research analyst because of his physical handicap. He claims that he could have performed the job with the assistance of a reader and that because of his previous satisfactory performance, he should have been given the opportunity to demonstrate his ability to perform the job of research analyst.

Statutes creating permanent irrebuttable presumptions, which are neither necessarily nor universally true, are disfavored under both the Fifth and Fourteenth Amendments, because they preclude individualized determination of the facts upon which substantial rights or obligations may depend. Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). For instance, in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), the Supreme Court invalidated a school board rule which presumed a pregnant teacher physically incapable of teaching for several months before and after the birth of her child; Vlandis v. Kline, supra, involved a statutory presumption of residency for purposes of college tuition; Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), involved a statute which presumed an unwed father unfit to raise his own children. We believe that Coleman's claim based upon the doctrine of conclusive presumptions fails for several reasons.

As noted above, the primary evil of conclusive, or irrebuttable, presumptions is their failure to provide an opportunity for an individualized determination of the relevant facts. In support of their motion for summary judgment, the defendants submitted affidavits from the person responsible for filling the research analyst position. Those affidavits reveal that Coleman's name was among seven referred to the Denver office for consideration for that position. (R.46) The selection ...