853 F.2d 1016 (1st Cir. 1988), 87-1707, Keyes v. Secretary of Navy

Docket Nº:87-1707.
Citation:853 F.2d 1016
Party Name:Joyce A.H. KEYES, Plaintiff, Appellant, v. SECRETARY OF THE NAVY, et al., Defendants, Appellees.
Case Date:August 10, 1988
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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853 F.2d 1016 (1st Cir. 1988)

Joyce A.H. KEYES, Plaintiff, Appellant,

v.

SECRETARY OF THE NAVY, et al., Defendants, Appellees.

No. 87-1707.

United States Court of Appeals, First Circuit

August 10, 1988

Heard Feb. 4, 1988.

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Alan Banov, Washington, D.C., for plaintiff, appellant.

Fidel A. Sevillano Del Rio, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for defendants, appellees.

Before CAMPBELL, Chief Judge, SELYA, Circuit Judge, and CAFFREY, [*] Senior District Judge.

SELYA, Circuit Judge.

Plaintiff-appellant Joyce A.H. Keyes, a black woman, sued the United States Navy (Navy), 1 and later joined the federal Office of Personnel Management (OPM). In her amended complaint, Keyes alleged that defendants-appellees (1) "discriminated against plaintiff because of her sex and/or her race" by failing to hire her for a vacant position as the supervisory social service analyst (SSSA) at the U.S. Naval Station, Roosevelt Roads, Ceiba, Puerto Rico; and (2) impermissibly awarded "veterans' preference points" to the successful aspirant, Lieutenant James Atkins, allowing Atkins to overtake Keyes in the race for the job. The parties stipulated to the facts and submitted the controversy to the United States District Court for the District of Puerto Rico as a case stated for decision under Fed.R.Civ.P. 52(a). The district court, in a thoughtful and well-reasoned opinion, rejected all of plaintiff's claims. Keyes v. Lehman, Civ. No. 84-3163 (D.P.R. May 18, 1987). We affirm.

I. CHRONOLOGY OF EVENTS

After receiving budgetary approval to fill the SSSA position at Roosevelt Roads, the Navy advertised the vacancy. In mid-January of 1984, OPM received a request to certify a list of "eligibles" for the opening. 2 OPM proceeded to make a position announcement on February 1, with a closing date of February 10. The announcement and notice of vacancy itemized the specialized experience required to qualify for the SSSA berth and noted that the successful applicant would, among other things, be required to provide technical expertise in planning, implementing, operating, and evaluating the family services program at the naval base through supervision of the administrative, counseling, and program coordinating services divisions. OPM's Handbook X-118 set forth a list of some seven factors "to be applied in measuring the applicant's experience in terms of difficulty, importance and scope of duties performed."

Plaintiff, the holder of a doctoral degree in special education, applied for the position, as did Lt. Atkins, a white male who was then on active military duty. Atkins possessed a master's degree in education administration and had extensive experience in human resources management (including a successful tour as director of the Counseling Center at Roosevelt Roads). Personnel specialists within the OPM reviewed the applications, gauged relevant experience and the like, and assigned appraisal scores of 86 points (out of a possible

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100) to each of the two aspirants. OPM then boosted Atkins into the lead by granting him, tentatively, five veterans' preference points (VPPs). 3 On February 28, OPM forwarded a roster of eligibles to the Navy. Keyes was on the list (ranked second, behind one Jean Johnson) but Atkins was not. On March 5, William Wright, director of the Civilian Personnel Office at the base and himself a black male, called OPM to inquire about this omission. After learning that Atkins's name had been dropped because his military commitment lasted until May, Wright asked whether Atkins might be considered if the appointment was deferred. Upon receiving an affirmative assurance, Wright returned the roster with a cover letter stating that recruitment for the SSSA position would probably not occur before May, at the earliest. The entry date was thereafter extended to August 5, 1984.

Wright's maneuver, it seems, kept Atkins in the running. When OPM was requested to forward a "new" eligibles list, and complied, it contained both names (among others). By reason of the VPPs, Atkins--with an appraisal score of 91--headed the list. Keyes, with a score of 86, was tied for third. In early May, Atkins, Keyes, and three others were interviewed by a naval selection board, which unanimously gave Keyes top billing. Seemingly because of her interview performance, the Navy initially chose plaintiff for the position (notwithstanding that Atkins, bedecked with VPPs, outranked her on the certified list). Lacking authority unilaterally to leapfrog a preference eligible individual, see infra, the Navy asked OPM for leave to "pass over" Atkins. OPM rejected the request. It found Atkins to be a preference eligible qualified for the post, entitled to it, and therefore, safe from a passover initiative. 4 The Navy yielded. Lt. Atkins was formally selected on July 19, honorably discharged on August 1, and became the SSSA on August 5. He has been performing the duties of the position satisfactorily since that date.

After exhausting her administrative remedies, plaintiff--who since mid-1983 has been continuously employed by the Navy as a teacher and/or school administrator--prosecuted this suit.

II. STANDARD OF REVIEW

Our standard of review on this appeal is familiar:

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

Fed.R.Civ.P. 52(a). A district court's finding concerning intent in an employment discrimination action is a factual finding within the "clearly erroneous" rubric. Anderson v. City of Bessemer City, 470 U.S. 564, 566, 105 S.Ct. 1504, 1507, 84 L.Ed.2d 518 (1985); Hallquist v. Local 276, Plumbers and Pipefitters Union, 843 F.2d 18, 22 (1st Cir.1988). And although this matter was decided on a paper record, without live testimony, "the clearly erroneous standard governs ... in full flower." In re Tully, 818 F.2d 106, 109 (1st Cir.1987), citing Anderson, 470 U.S. at 574, 105 S.Ct. at 1511.

Where a district court sits without a jury, as here, our proper function is far removed from any attempt to decide factual issues anew. Anderson, 470 U.S. at 573, 105 S.Ct. at 1511. We are not at liberty to prepare a palimpsest. Rather:

If the district court's account of the evidence is plausible in light of the record

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reviewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.

Id. at 573-74, 105 S.Ct. at 1511. It follows logically that: "Where the conclusions of the [trier] depend on its election among conflicting facts or its choice of which competing inferences to draw from undisputed basic facts, appellate courts should defer to such fact-intensive findings, absent clear error." Irons v. FBI, 811 F.2d 681, 684 (1st Cir.1987); see also Anderson, 470 U.S. at 574, 105 S.Ct. at 1511; Gierbolini-Colon v. Aponte-Roque, 848 F.2d 331, 334-35 (1st Cir.1988).

With these guidelines in mind, we turn first to Atkins's professed entitlement to the assigned VPPs. Finding the award of points to have been appropriate in this case, we proceed to scrutinize the district court's conclusion that plaintiff proved no purposeful race or sex discrimination on defendants' part. 5

III. VETERANS' PREFERENCES

To place the tabulation of VPPs into proper perspective, we must first discuss the federal civil service, the role that veterans' preferences play in the scheme of things, and how OPM fits into the picture. When this backdrop is painted--albeit with a rather broad brush--we will address Atkins's entitlement to a preference.

A. The Competitive Service. In the executive branch, "open, competitive examinations," 5 U.S.C. Sec. 3304, are generally a precursor to appointment to "competitive" positions within the federal civil service. See generally 5 U.S.C. Secs. 3301-3328. The SSSA vacancy fell within this taxonomy. Thus, interested parties were required to compete and undergo examinations so that OPM--which administers the service--might establish a "register[ ] of eligibles." 5 U.S.C. Sec. 3313. In ranking eligibles, OPM does so by aggregate point scores, including allowable preferences and credits for experience. 5 U.S.C. Sec. 3311.

Once the register is constituted, OPM "shall certify enough names from the top of the ... register to permit [the] ... appointing authority ... to consider at least three names for appointment to each vacancy in the competitive service." 5 U.S.C. Sec. 3317(a). If a "preference eligible" is on the list, he or she cannot be "pass[ed] over" by the appointing authority in favor of a lower-ranked individual unless OPM, for good cause shown, acquiesces. 5 U.S.C. Sec. 3318(b)(1).

B. Veterans' Preferences. A veteran, that is, a person who "served on active duty ... at any time in the armed forces for a period of more than 180 consecutive days [within a specified time period] ... and who has been separated ... under honorable conditions," 5 U.S.C. Sec. 2108(1)(B), is a "preference eligible." See also Federal Personnel Manual (FPM), ch. 211, sub. 2-1 (July 7, 1983) (defining "veteran" as one "who was separated [honorably] from active duty in the armed forces"). As such, the veteran is entitled to receive an additional five points above his or her earned score for purposes of register consideration. See 5 U.S.C. Secs. 2108(3)(A), 3309(2).

Veterans' preferences may seem counterintuitive in an era and in...

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