Abrams v. Johnson

• Decision Date: 29 April 1976
• Docket Number: No. 75-1710,75-1710
• Citation: Abrams v. Johnson, 534 F.2d 1226 (6th Cir. 1976)
• Parties: 12 Fair Empl.Prac.Cas. 1293, 11 Empl. Prac. Dec. P 10,871 Mary Ann ABRAMS, Plaintiff-Appellant, v. Donald E. JOHNSON et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1226

534 F.2d 1226

12 Fair Empl.Prac.Cas. 1293,

11 Empl. Prac. Dec. P 10,871

Mary Ann ABRAMS, Plaintiff-Appellant, v. Donald E. JOHNSON et al., Defendants-Appellees.

No. 75-1710.

United States Court of Appeals Sixth Circuit.

Argued Dec. 11, 1975.

Decided April 29, 1976.

Robert E. Sweeney, Sweeney, Mahon & Vlad, Cleveland, Ohio, for plaintiff-appellant.

Fredrick M. Coleman, U. S. Atty., Joseph A. Cipollone, Cleveland, Ohio, for defendants-appellees.

Before EDWARDS and MILLER, ^* Circuit Judges, and CHURCHILL, ^** District Judge.

EDWARDS, Circuit Judge.

This case presents two important issues. The first is whether a Title VII civil rights employment discrimination case brought by a federal government employee under 42 U.S.C. § 2000e-16(c) (Supp. II, 1972) entitled her to a trial de novo before the United States District Court. We answer this question "Yes."

The second is whether the District Judge properly dismissed appellant's claim of racial discrimination in the Veterans Administration's choice of a white female applicant named Dolores Wehner for the post of Supervisory Clerk at the Brecksville, Ohio, Veterans Administration Hospital over appellant Mary Ann Abrams, a black woman who scored highest when qualified applicants were certified by a rating panel under the Veterans Administration's own promotion plan. Our consideration of this entire record convinces us that plaintiff-appellant carried the burden of proving a prima facie case of racial discrimination and we vacate the District Court's judgment and remand the case for reconsideration under a different allocation of the burden of proof than that which the court employed.

THE TRIAL DE NOVO ISSUE

In 1972 Congress took steps to extend to federal employees the protections against discriminatory employment practices which employees in private industry had enjoyed since 1965. See 42 U.S.C. §§ 2000e-2, 2000e-5 (1970). The antidiscrimination provisions pertaining to federal employees were adopted in 42 U.S.C. § 2000e-16(a) (Supp. II, 1972) and were made enforceable in the first instance by the Civil Service Commission. 42 U.S.C. § 2000e-16(b) (Supp. II, 1972). In 42 U.S.C. § 2000e-16(c) (Supp. II, 1972) ¹ Congress also provided that within thirty days of receipt of notice of final adverse action by the Civil Service Commission "an employee . . . may file a civil action as provided in section 2000e-5 of this title."

Section 2000e-5 is the section which grants employees in private industry a "civil action" for racial discrimination. It does not in express terms grant private employees a "trial de novo," but it is now settled law that its provisions have that effect. In the concluding paragraph of Justice Powell's opinion for a unanimous Supreme Court in Alexander v. Gardner-Denver Co. 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), the Court held:

We think, therefore, that the federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the grievance-arbitration clause of a collective-bargaining agreement and his cause of action under Title VII. The federal court should consider the employee's claim de novo. The arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate. 21

Alexander v. Gardner-Denver Co., supra, at 59-60, 94 S.Ct. at 1025, 39 L.Ed.2d at 164.

See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 799, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668, 676 (1973).

We recognize, of course, that the Gardner-Denver case dealt with private rather than federal employees. But in 42 U.S.C. § 2000e-16(d) (Supp. II, 1972) Congress said that the provisions construed above should govern civil actions brought by federal employees:

(d) The provisions of section 2000e-5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder.

Even without the Supreme Court's explicit establishment of de novo trial for private employees under Title VII, we would have believed that Congressional grant of a right to "file a civil action" should be construed as a right to a "trial" rather than to an appeal upon the record made before the Civil Service Commission. Of course, as indicated in footnote 21 from Gardner-Denver above, the District Court has discretion to admit the prior record (there arbitral) and to give weight to the prior decision. But as we understand trial de novo, admission of an administrative record by no means precludes the taking of additional evidence or even rehearing the testimony of key witnesses.

We shall not proceed further with this discussion. The ambiguities of the legislative history have been amply discussed in the conflicting decisions listed below. This exact issue is now pending before the Supreme Court in Chandler v. Johnson, 515 F.2d 251 (9th Cir. 1975), cert. granted sub nom. Chandler v. Roudebush, 44 U.S.L.W. 3179 (U.S. Oct. 6, 1975) (No. 74-1599). We state our view so that it can be weighed along with the generally similar views of the Third, Seventh and D.C. Circuits (See Sperling v. United States, 515 F.2d 465 (3d Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3107 (U.S. Aug. 15, 1975) (No. 75-247); Caro v. Schultz, 521 F.2d 1084 (7th Cir. 1975), petition for cert. filed sub nom. Simon v. Caro, 44 U.S.L.W. 3346 (U.S. Dec. 1, 1975) (No. 75-784); Hackley v. Roudebush, 520 F.2d 108 (D.C.Cir. 1975)) and with conflicting views of the Eighth, Ninth and Tenth Circuits (See Haire v. Calloway, 526 F.2d 246 (8th Cir. 1975); Chandler v. Johnson, supra; Salone v. United States, 511 F.2d 902 (10th Cir. 1975), petition for cert. filed, 43 U.S.L.W. 3684 (U.S. June 19, 1975) (No. 74-1600)).

On this issue we reject the contentions of the government. The District Judge essentially granted appellant a trial de novo, although he admitted the full administrative record and did set certain limits on additional evidence. We have written on this matter partly to express our circuit's point of view on an important issue, and partly to make clear that on the remand which we subsequently order, the District Judge has wide discretion to hear any evidence which would be admissible in a case containing no prior record if it is tendered and such evidence is not objectionable as redundant or cumulative.

THE RACE DISCRIMINATION ISSUE

This controversy begins with the Veterans Administration's announcement on June 16, 1972, that there was an opening for the position of Supervisory Clerk (Chief, Ward Administration Section) at a GS-7 classification at a salary of $9,053-$11,771 at the Brecksville, Ohio, Veterans Administration Hospital. Appellant Mary Ann Abrams, who then was employed at the hospital as a secretary-stenographer with a GS-5 classification, applied for the position under the hospital's Merit Promotion Plan. The announcement of the vacancy for the position of Supervisory Clerk stated that applications would be accepted under the Merit Promotion Plan. It also stated:

It is our policy to fill vacancies by selection from the 'best qualified' applicants available. Normally vacancies will be filled through the promotion plan; however, to insure selection from the 'best qualified' persons, concurrent consideration may be given persons known to be available for transfer, reinstatement, reassignment, voluntary change to lower grade, or by appointment from the outside. Regardless of the placement action, there will be no discrimination because of sex, race, color, religion, national origin, lawful political affiliation, marital status or physical handicap.

The Merit Promotion Plan called for the rating of applicants for promotion by a rating panel appointed by the hospital superintendent. The panel rated applicants as to basic qualifications, additional experience, education and training, employee awards, outside activities, and supervisory evaluations. According to the plan the panel makes a numerical rating of each applicant without knowing the applicant's name and within five days forwards an alphabetical list of those eligible to the "selecting official." The selecting official then interviews the eligible candidates and within five days announces the selection.

In this instance on July 25, 1972, the five applicants with the highest ratings and the individual scores were certified to the selecting official, James E. McGhee. Their scores were as follows:

Mary Ann Abrams  93
                Lillian Mark     92
                Joan H. Allen    89
                Miriam Merleno   89
                Bernice Bene     89
                

A supplement dated the same day was attached to the certificate stating: "The name of Delores M. Wehner, Supervisory Clerk, GS-8 VA Hospital, Cleveland, Ohio, is referred for consideration for reassignment and change to lower grade."

McGhee testified that the next day, July 26, 1972, he went to the VA Hospital in Cleveland on business and there interviewed Miss Wehner whom he had heard highly recommended by her supervisor. Without interviewing the persons on the certified promotion list before making his decision, as contemplated by the promotion plan, McGhee decided to offer the position to Miss Wehner. The record indicates, however, that Wehner had been rated 83 by the same rating panel ten points lower than appellant. Subsequently, McGhee was instructed by the Acting Superintendent of the hospital to interview all of those on the certified promotion list. McGhee did so, telling each that he had already made his decision to offer the position to someone else. As will be detailed, McGhee then and later defended his appointment by contending that on the basis of long experience and a good work record in the same duties which were involved in the post to which he appointed her, he considered Wehner the "best qualified" applicant.

Appellant charged (and somewhat equivocally the District Judge appears to agree) that prior to 1972 there had been "a distinct pattern of...