Powers v. Dole
| Decision Date | 27 January 1986 |
| Docket Number | No. 85-1079,85-1079 |
| Parties | 39 Fair Empl.Prac.Cas. 1774, 39 Empl. Prac. Dec. P 35,912 Michael F. POWERS, Plaintiff-Appellant, v. Elizabeth Hanford DOLE, Secretary of the United States Department of Transportation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Scott A. Mayer, Mayer & Mayer, Northbrook, Ill., for plaintiff-appellant.
Anton Valukas, U.S. Atty., Elizabeth M. Landes, Asst. U.S. Atty., Chicago, Ill., for defendant-appellee.
Before CUMMINGS, Chief Judge, RIPPLE, Circuit Judge, and PELL, Senior Circuit Judge. *
The appellant, Michael F. Powers, brought an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e--2000e-17 against the Secretary of Transportation. He charged that he had been subjected to race and gender discrimination. The district court, 607 F.Supp. 841 (N.D.Ill.1984), denied his motion for summary judgment and granted the Secretary's cross-motion for summary judgment. We affirm.
Michael Powers, the plaintiff, is a white male who has been an employee of the Federal Aviation Administration (FAA) of the United States Department of Transportation (DOT) continuously since August 30, 1981. In late 1981, Mr. Powers participated in the FAA Academy's training program for air traffic controllers. He was notified on December 14, 1981 that he had failed Phase IV, the final phase of the training program. Thereafter, Mr. Powers was removed from his GS-7 grade and assigned to another position within the FAA at a GS-3 grade.
On December 30, 1981, Mr. Powers filed an informal grievance with the FAA. He claimed that poor and inadequate instruction at the FAA Academy caused his training failure. He contended that retired contract instructors hired after a strike by active air traffic controllers gave him poor instruction during the daily lab problems. He also claimed that construction noise, lack of advance notice of seat rotation and problem assignments contributed to his failure. Mr. Powers requested that he be "recycled" by permitting him to undergo training again.
On February 23, 1982, Elmer Loudermilk, the FAA grievance examiner responsible for the initial review of Mr. Powers' grievance, issued a five-page report recommending that the grievance be granted. Mr. Loudermilk found that the effect of the construction noise was minimal and that the seat rotation and problem assignment claims were without merit. However, he did find that the quality of instruction was inferior to that which is normally given and that improved instruction would have resulted in a higher test score for the plaintiff. Examiner Loudermilk also found that Mr. Powers' rate of progress on the last three graded problems "tended to substantiate" his potential for recycling.
Kenneth C. Patterson, the official to whom the examiner's recommendation was submitted pursuant to the FAA's grievance procedures, rejected the recommendation. In an affidavit submitted in support of defendant's motion for summary judgment Mr. Patterson stated that Powers had not demonstrated sufficiently that his failure was due to inadequate instruction. Patterson also stated that his decision was not based on the fact that Powers is a white male.
Paul K. Bohr, Director of the Great Lakes Region of the FAA, subsequently reviewed Powers' grievance pursuant to standard FAA procedures. He also concluded that it should be denied. Mr. Bohr relied upon the fact that only one of the instructors who graded Powers' problem was a retired contract instructor. That instructor had given Powers his highest grade on a problem. In his affidavit, Director Bohr stated that he found no merit to Powers' claim that inadequate instruction was the cause of his training failure. He also stated that the decision was not based on the fact that Powers is a white male.
On May 18, 1982, Powers lodged an informal discrimination complaint with Henry T. Rogers, the Equal Employment Opportunity counselor for the DOT in Chicago. Mr. Powers rejected the informal proposed resolution that he be recycled upon the condition that he complete twelve months of Air Traffic Assistant duties and that he maintain a good work record and be recommended by his supervisor. On May 19, Powers also filed a request with Director Bohr to reverse his decision, pointing out that, although only one contract instructor graded his problems, all of the instructors who did the actual teaching were contract instructors. The request was denied.
On June 29, 1982, Powers filed a formal complaint charging DOT with race and sex discrimination for failing to recycle him through training when females and minorities who showed inadequate FAA instruction were recycled. Powers also complained of improper and unfair handling of his FAA grievance. In support of his discrimination complaint, he submitted an affidavit with eight attachments. In his affidavit, Powers argued that the FAA erred in concluding that he had received adequate instruction in the air traffic controller training program. He also outlined the evidence he believed supported his claim of poor instruction. Mr. Powers contended that the FAA's refusal to recycle him was necessarily based upon his being a white male.
One attachment submitted by Mr. Powers was an affidavit of Ken Jackson, an FAA Terminal Supervisor. Mr. Jackson's affidavit stated his belief that, if Powers had been a minority member or a female, he would have been recycled by the FAA in order to negate the appearance of discrimination. The affidavit did not set forth any factual basis for the belief. Another attachment consisted of summaries of telephone conversations with two fellow students who had passed the training course, one assistant lead instructor, a terminal section chief, the class unit chief, the lead instructor, and a "one on one" instructor. These unsworn summaries expressed opinions as to the poor quality of instruction given in class. A further attachment was a petition by Powers' fellow classmates asking the administration to recycle those persons in the class who requested it because instruction given in the laboratory portion of the class by contract retired personnel was inadequate.
Mr. Powers also attached to his affidavit a letter from DOT outlining Examiner Loudermilk's record of decisions as an FAA grievance examiner during the years 1978 through 1983. The letter stated that Loudermilk had served as the examiner in twenty-eight cases. One case was still pending. Three grievances in which Loudermilk had issued recommendations involved minorities. Loudermilk had recommended denial in two of these cases and FAA management had accepted Loudermilk's recommendations. The other grievance involving a minority was settled. The other twenty-four cases involved white employees. In seventeen of these cases, Loudermilk had recommended that the grievances be denied. The FAA had accepted each of these recommendations. In seven cases, Loudermilk recommended that the grievance be granted. In six of the cases, the recommendation was accepted. The only case in which Loudermilk's recommendation was overturned was Powers'. The sex of the complainants was not indicated nor were the reasons for the complaints given.
In a memorandum also appended to Powers' affidavit, Kenneth Patterson set forth his reasons for not adopting Loudermilk's recommendation in Powers' case. Mr. Patterson stated that four out of the five personnel interviewed had said that the instruction was adequate. Mr. Patterson also pointed out that Powers had made the same errors in his practice problems in training as he did in his graded problems. Since the practice problems were critiqued, Mr. Patterson believed that the logical inference was that Powers did not learn from his mistakes.
FAA records included in the record of investigation of Powers' claim revealed that eleven individuals who failed the FAA air traffic controller training program filed FAA grievances seeking recycling during 1980 through 1983. Eight of the individuals, including Powers, were white males; one was a white female and one a minority male. Ten of these individuals were unsuccessful in their complaints. One white male was recycled. The reasons for these FAA grievances were not included in the record.
Powers' investigative file also contained information relating to discrimination complaints filed by individuals who claimed they were subjected to discrimination in the course of their training for air traffic controller positions. Regional FAA records from 1980 through December 11, 1981 indicated that six minority females and one white female had filed successful complaints of discrimination with the Civil Rights Staff. All of the complaints were formal; six of the complaints alleged discrimination based on racism or sexism in the Academy training as factors contributing to their failing the program. Two alleged medical problems and one alleged harassment. During this same period, an additional fifteen individuals filed unsuccessful complaints with the Civil Rights Staff. Six were white males, three were minority males, two were white females, and one was a minority female. No race was indicated with respect to one male and two females. Five of the seven males alleged that preferential treatment was shown to minorities or females in their classes. One female alleged discrimination against females during training. One minority male alleged favoritism of white females in recycling, and two white females claimed preferential treatment in training of minorities and minority females. One minority male claimed he received conflicting information from instructors. After December 11, 1981, the jurisdiction for processing Academy complaints was changed from the Great Lakes Region Civil Rights Staff to the exclusive jurisdiction of the FAA Academy Civil Rights Staff. Records obtained from the Academy's Civil Rights Staff...
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