Valentino v. U.S. Postal Service

• Decision Date: 26 March 1982
• Docket Number: No. 81-1202,81-1202
• Citation: 674 F.2d 56,218 U.S.App.D.C. 213
• Parties: 28 Fair Empl.Prac.Cas. 593, 28 Empl. Prac. Dec. P 32,546, 218 U.S.App.D.C. 213 Mary P. VALENTINO, individually and on behalf of all other persons similarly situated, Appellant, v. UNITED STATES POSTAL SERVICE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 56

674 F.2d 56

28 Fair Empl.Prac.Cas. 593,

28 Empl. Prac. Dec. P 32,546, 218 U.S.App.D.C. 213

Mary P. VALENTINO, individually and on behalf of all other persons similarly situated, Appellant, v. UNITED STATES POSTAL SERVICE.

No. 81-1202.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 3, 1981.

Decided March 26, 1982.

Stephen N. Shulman, Washington, D. C., with whom Joseph A. Artabane, Geoffrey Brown, and Joseph A. Ingrisano, Washington, D. C., were on the brief, for appellants.

William H. Briggs, Jr., Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty. at the time the briefs were filed, Royce C. Lamberth, and Kenneth M. Raisler, Asst. U. S. Attys., and David G. Karro, Atty., U. S. Postal Service, Washington, D. C., were on the brief, for appellee.

Before TAMM, WALD and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

This action, brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., centers on the promotion system for upper echelon positions instituted in January 1976 at United States Postal Service (USPS) Headquarters. Plaintiff-appellant Mary P. Valentino charges that the system, in operation, accords women disadvantageous treatment based on their sex. Valentino pursues on appeal an individual charge that, under the promotion system in question, she was discriminatorily denied advancement to the position of Director of the Office of Employee Services, an office within the Employee and Labor Relations (E&LR) Group at USPS Headquarters. She also pursues, on behalf of a class, a charge that women holding upper echelon posts at USPS Headquarters since June 16, 1976, have been denied promotions on the basis of their sex. ¹

Following a two-week non-jury trial, at which twenty-nine witnesses were heard and hundreds of pages of exhibits were introduced, both sides submitted detailed proposed findings of fact and conclusions of law. The district court substantially accepted, with some modification, USPS's proposed findings and conclusions ² and As to Valentino's individual claim, we find ample record support for the district court's conclusions that (1) Valentino established a prima facie case, (2) USPS produced adequate evidence of a legitimate, nondiscriminatory reason for its action-it explained that those involved in the selection process fairly and rationally judged Valentino a well-qualified, but not the best qualified applicant, (3) Valentino failed to carry the ultimate persuasion burden the law placed upon her to demonstrate that the reason USPS proffered was a pretext cloaking sex discrimination. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

ruled against Valentino on both her individual and class claims. 511 F.Supp. 917 (D.D.C.1981). Upon close review of the record and consideration of counsels' arguments, we find no reversible error in the district court's adjudication and therefore affirm the judgment in favor of USPS.

Regarding the class claim, both sides tendered statistical evidence heavier in volume than in persuasive content. Valentino's presentation showed a conceded and familiar pattern-USPS employed a distinctly smaller percentage of women in top posts than in lower level jobs. The higher level promotion positions at issue, however, covered a wide range, including inter alia, confidential secretaries, lawyers, engineers, business managers. Valentino's data did not offer a sufficiently refined comparison of male and female employees of similar qualifications, her statistics did not hone in on the wide variety of minimum objective qualifications required of applicants for the diverse promotion positions filled at USPS Headquarters during the relevant time period. See Hazelwood School District v. United States, 433 U.S. 299, 308 n.13, 97 S.Ct. 2736, 2742 n.13, 53 L.Ed.2d 768 (1977) (when special qualifications are required to fill professional positions, comparative statistics should take into account those special qualifications); Wilkins v. University of Houston, 654 F.2d 388, 408-10 (5th Cir. 1981) (plaintiff must demonstrate availability of qualified class members for particular professional and administrative occupations); Pack v. Energy Research & Development Administration, 566 F.2d 1111, 1113 (9th Cir. 1977). Moreover, her data did not show marked differences in the advancement rate of men and women after January 28, 1976, the effective date of the promotion system operative for the class. See 511 F.Supp. at 940; J.A. 207-09. Although we do not share the district court's view of the force of USPS's statistical proof, we disregard as surplusage the findings and conclusions addressed to that data. It sufficed for the district court to determine correctly, as it did, that Valentino failed to prove the claim her complaint stated on behalf of the class.

I. THE INDIVIDUAL CLAIM

A. Facts

Mary P. Valentino has had a long career in the personnel field in government service. Her USPS employment, however, has been relatively short-term. She was initially engaged by the Post Office Department in October 1970 to work as an Employment Specialist (Women). Prior to that assignment, she held the post of Director of Personnel at the Equal Employment Opportunity Commission. The Post Office position increased her annual salary by approximately $2,000. She remained in this position only seven months. The functions of the Post Office Department were being transferred to USPS during this period and Valentino was among a group of employees eligible to retire early with a six-month pay bonus. She opted for early retirement and accepted a bonus of approximately $13,600.

Nine months later, in February 1972, Valentino re-entered federal service first at the Food and Drug Administration and, in December 1972, at the Consumer Product Safety Commission (CPSC), where she became Director of Personnel. In late 1973 In sum, until 1976, it appears that Valentino's own Post Office and USPS employment experience entailed no gender-based unfavorable treatment, and we do not understand Valentino to contend otherwise. ³ Rather, her individual claim stems from a 1976 efficiency-oriented realignment of the E&LR Group, which eliminated the Office of Career Planning, and her unsuccessful bids for promotion to two newly-created posts.

and early 1974, USPS officials sought out Valentino and she accepted work at USPS Headquarters commencing February 1974 as Director, Office of Career Planning, in the E&LR Group. At CPSC, her annual salary was $32,932. Her starting salary at USPS was $33,500; unlike most early retirees who returned to postal employment, she was not required to repay the six-month bonus paid to her in May 1971. Valentino's new office at USPS had a total staff of three; it was responsible for supervision of a Women's Program and career planning for postal employees.

In September 1975, planning commenced for a realignment of the USPS Headquarters E&LR Group. The objective was to streamline the organization and eliminate functional duplication. All high-level officers, including Valentino, participated in the realignment planning effort. The realignment was announced in April 1976, effective June 4, 1976; it entailed the elimination of approximately 140 positions, including Valentino's. Several new posts were created (although the retrenchment left approximately 100 fewer positions), and Valentino unsuccessfully applied for two of them: Director, Office of Human Resources (OHR); and Director, Office of Employee Services (OES). Both posts carried ranks higher than the Office of Career Planning position Valentino then occupied. ⁴ In her administrative charge and in the district court Valentino challenged as sex discriminatory USPS's failure to select her for the OHR as well as the OES directorship. On appeal, she has confined her individual, discriminatory failure to promote argument to the OES post.

In addition to her Title VII sex discrimination charge, Valentino filed an ultimately unsuccessful administrative charge with the Civil Service Commission in which she attacked the realignment because it was not handled as a reduction in force (RIF), to which the Veterans Preference Act applies. See 39 U.S.C. § 1005(a)(2) (applying 5 U.S.C. § 3502, which governs reductions in force, to USPS preference eligible employees). As the widow of a veteran, Valentino was entitled to preference under that Act. See J.A. 636-37, 639-41. At the trial of the Title VII case now before us, the Senior Assistant Postmaster General who initiated the realignment testified that among the reasons USPS sought to avoid RIF procedures was the serious adverse effects those procedures would have on opportunities for female employees, most of whom hold no veterans' preference. J.A. 728-29. In its findings and conclusions, the district court noted a certain inconsistency in Valentino's "advocacy of women's rights" at the same time she urged that veterans' preference bumping rights should have attended the retrenchment. 511 F.Supp. at 921, 951. ⁵

Valentino's promotion applications were processed under a system inaugurated in January 1976. Known as the Essential Vacancy System (EVS), the system implemented the Postmaster General's November 1975 directive that all vacancies at Headquarters be filled from within. The EVS prohibited filling vacant positions not considered essential, required the posting of vacancies that would be filled, and established review committees to screen applicants. These committees were to include, if possible, either a female or a member of a minority. See 511 F.Supp. at 921. The five-member review committee that screened Valentino's OHR and OES applications included one woman and one member of a minority group.

Fifty-three persons applied for the OES directorship. Valentino was among the six top...