McIntosh v. Weinberger
| Citation | 810 F.2d 1411 |
| Decision Date | 09 April 1987 |
| Docket Number | Nos. 85-2023,85-2086,s. 85-2023 |
| Parties | 45 Fair Empl.Prac.Cas. 398, 42 Empl. Prac. Dec. P 36,927 Elise D. McINTOSH; Susan C. Sorrells; Odessa Hollis; Ann E. Kennedy; and JoAnn Scherbring, individually and as representatives of a class of individuals employed by the United States Army who have been denied promotional opportunities by reason of race, color, national origin, or age, Appellants, v. Caspar W. WEINBERGER, Secretary of Defense; John O. Marsh, Jr., Secretary of the Army; Edward Turner, individually and in his capacity as Assistant Civilian Personnel Officer for Troop Support and Aviation Materiel Readiness Command, Appellees. Elise D. McINTOSH; Susan C. Sorrells; Odessa Hollis; Ann E. Kennedy; and JoAnn Scherbring, individually and as representatives of a class of individuals employed by the United States Army who have been denied promotional opportunities by reason of race, color, national origin, or age, Appellees, v. Caspar W. WEINBERGER, Secretary of Defense; John O. Marsh, Jr., Secretary of the Army; Edward Turner, individually and in his capacity as Assistant Civilian Personnel Officer for Troop Support and Aviation Materiel Readiness Command, Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Louis Gilden, St. Louis, Mo., for appellants.
Joseph Moore, Asst. U.S. Atty., St. Louis, Mo., for appellees.
Before ARNOLD and FAGG, Circuit Judges, and BRIGHT, Senior Circuit Judge.
Plaintiffs Elise McIntosh, Susan Sorrells, Odessa Hollis, Ann Kennedy, and JoAnn Scherbring are current and former employees of the Automated Logistics Management Systems Activity (ALMSA), a branch of the United States Army located in St. Louis, Missouri. They brought suit in the District Court 1 alleging that discrimination based on race, national origin, and age had occurred in certain ALMSA promotion actions, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C Sec. 2000e-16, and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Sec. 633a (Count I); that ALMSA officials had retaliated against them for filing Equal Employment Opportunity (EEO) complaints (Count II); that there had been systemic discrimination in ALMSA promotion practices and procedures, affecting a class of minority and older employees (Count III); and that individual defendant Edward Turner, an Army personnel official, had violated their due-process rights by concealing and destroying certain merit-promotion records (Count IV). The plaintiffs appeal from the District Court's adverse judgment on Counts I through III, and defendant Turner appeals from the judgment entered on a jury verdict for the plaintiffs on Count IV. Except as to one issue that has become moot, we affirm on all counts.
As background to the particular facts and issues of this case, it is necessary to discuss in some detail the system of personnel administration under which the federal government operates. The great majority of civilian positions in the Executive Branch, including those in this case, are in the "competitive service" and are administered under regulations issued by the Office of Personnel Management, the federal government's central personnel agency. The basic authority of OPM is found in 5 U.S.C. Secs. 1101 et seq. OPM issues government-wide regulations for use by other agencies and delegates to those agencies the authority to operate their own personnel programs within the limits of these regulations. OPM has the responsibility for overseeing agency personnel programs to ensure that its regulations are complied with.
Federal agency personnel administrators operate under a highly elaborate system of law and regulation. The basic statutes, found in Title 5 of the United States Code, define in general the responsibilities of the federal government as employer. Government-wide Civil Service Rules and Civil Service Regulations, promulgated by OPM and found in the Code of Federal Regulations, refine these principles and are binding on all agencies with employees in the competitive service. The Federal Personnel Manual (FPM), also published by OPM, contains the detailed day-to-day operating rules and is also binding on agencies. The FPM itself is further elaborated by FPM Supplements, which provide precise standards for certain categories of actions, and FPM Bulletins, which give additional, temporary guidance on selected issues. The regulatory authority of OPM extends throughout the various levels of regulations which have been described above. In addition to this body of government-wide regulations, each agency publishes its own instructions. These are supplementary to the OPM regulations, and relate those regulations to the particular organizational context of the agency. In the Department of the Army, each headquarters-level command issues instructions for the guidance of local units within the command. In the present case, the headquarters command is the U.S. Army Materiel Development and Readiness Command (DARCOM). Its written instructions are applicable to the constituent organizations under its control ("local activities"). It shares with OPM the responsibility for supervising personnel administration within the local activities. ALMSA is a local activity within DARCOM. For its own purposes, it has negotiated with its employees certain local procedures which further define the discretion of management in personnel matters. Although ALMSA had its own promotion plan, its personnel operations were performed by the Troop Support and Aviation Materiel Readiness Command (TSARCOM), another Army activity in St. Louis.
The federal personnel system is permeated by reliance on merit system principles. These principles are set out at 5 U.S.C. Sec. 2301, which includes the following language:
(b) Federal personnel management should be implemented consistent with the following merit system principles:
(1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills after fair and open competition which assures that all receive equal opportunity.
(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition....
(3) Equal pay should be provided for work of equal value....
Much of the accumulated mass of federal personnel regulations is designed to enhance and protect these principles.
The promotion procedure at ALMSA, which is at issue here, is set up as follows: When a position vacancy arises, a personnel specialist consults with the supervisor over the position to determine the key performance requirements of the job. A crediting plan is assembled, which is to serve as a guide for the evaluation and ranking of eligible candidates for the vacancy. The vacancy is posted through a "Job Opportunity Announcement" (JOA). The JOA describes the position and its organizational location, the qualification requirements and the performance elements, and sets an initial closing date for receipt of applications. If the vacancy provides for a subsequent career promotion, i.e., promotion to a higher level without further competition, this is noted on the JOA. Applicants are requested to submit a resume of their qualifying experience along with a narrative description of their experience and training in the key performance areas of the job. The employee's current supervisor is also invited to comment on the employee's likelihood of successful performance.
After the closing date of the JOA, the personnel specialist determines the basic eligibility of each applicant. This is done by applying the OPM qualification standard (known in the trade as "handbook X-118") to each application. The X-118 standard describes for each occupation the kinds of experience which would be likely to provide the necessary knowledge and skill for entry and normal advancement. The standard specifies for each grade level of work within the occupation the number of years of general and specialized experience which must be shown for the applicant to be minimally qualified. Generally, the qualifying experience must have been progressively responsible, with at least one year of the specialized experience at a level of responsibility no more than two grades below the grade of the position to be filled. At the same time as the personnel specialist screens the qualifications of each applicant, he or she also checks the application materials to ensure that the applicant meets time-in-grade, time-after-competitive-appointment, and other regulatory prerequisites for promotion eligibility.
Once this screening process is completed, the personnel specialist assembles a panel of "subject matter experts." These persons, although not trained in personnel, are knowledgeable about the occupation for which applications have been taken. The panel is given the applications of eligible candidates and the crediting plan. Using the crediting plan as a guide, each panel member rates each application and the supervisors' remarks on the various performance elements which are identified in the plan. Then the panel discusses the ratings and reaches a consensus on a final numerical score for each candidate. The rated applications are then ranked and divided into three groups using a mathematical formula provided in the crediting plan. The highest group is the "best-qualified" pool. Candidates in this group are referred to the selecting official. Below this pool is a group of "highly qualified" (but not best-qualified) candidates. These...
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