Bacon v. Secretary of Air Force

• Decision Date: 04 December 1991
• Docket Number: No. C2-87-1318.,C2-87-1318.
• Citation: Bacon v. Secretary of Air Force, 785 F.Supp. 1255 (S.D. Ohio 1991)
• Parties: Kazuhito BACON, Plaintiff, v. SECRETARY OF the AIR FORCE, Defendant.
• Court: U.S. District Court — Southern District of Ohio

785 F. Supp. 1255

Kazuhito BACON, Plaintiff, v. SECRETARY OF the AIR FORCE, Defendant.

No. C2-87-1318.

United States District Court, S.D. Ohio, E.D.

December 4, 1991.

Daniel P. Jones, Columbus, Ohio, for plaintiff.

Joseph E. Kane, Asst. U.S. Atty., for defendant.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

This matter is before the Court upon Objections to the October 8, 1991 Report and Recommendation of the Special Master.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 53(e)(2) provides in pertinent part:

(2) In Non-Jury Actions. In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject in whole or in part or may receive further evidence or may recommit it with the instructions.

The Court of Appeals for the Sixth Circuit has recently held that, "when a district court is presented with objections to the report of a special master, the objector has a right to a hearing." Kieffer v. Sears, Roebuck & Company, 873 F.2d 954, 956 (6th Cir.1989). Accordingly, this Court finds that upon objection to the report of a Special Master an oral hearing must be conducted here.

The "clearly erroneous" standard has been defined as follows:

A finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed. The question is not whether the finding is the best or only conclusion that can be drawn from the evidence, or whether it is the one which the reviewing court would draw. Rather, the test is whether there is evidence in the record to support the (Special Master's) finding, and whether (his) construction of that evidence is a reasonable one.

Heights Community Congress v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985), U.S. cert. denied in 475 U.S. 1019, 106 S.Ct. 1206, 89 L.Ed.2d 318 (1986).

The Special Master issued his report on October 8, 1991 recommending that judgment be entered for defendant United States Air Force. On October 15, 1991, plaintiff Bacon filed his Objections to the Special Master's Report and Recommendation. Shortly thereafter, Defendant United States Air Force Responses to Plaintiff's Objections to Magistrate's Report and Recommendation were filed. An oral hearing was conducted on November 26, 1991 to consider these objections.

CONCLUSION

Plaintiff Bacon, being afforded an opportunity to be heard by the Court, argued that the Special Master either did not consider all facts, or, alternatively, misapplied the facts in making his Report and Recommendation. The Court has examined each allegation and finds that they are without foundation. The facts as presented by Plaintiff Bacon before this Court do not differ from those considered by the Special Master. While the Court acknowledges that Plaintiff Bacon's view of the facts differs from that of the Defendant and the Special Master, this distinction is not sufficient for this Court to find contrary to the Special Master.

Upon a thorough review of the record, briefs, objections and matters addressed during the oral hearing, the Court finds no clear error on the part of the Special Master's finding of fact. Further, this Court is in full agreement of the Special Master's Conclusions of Law in the instant matter.

Accordingly, the Court ADOPTS the Report and Recommendation of the Special Master in its entirety.

IT IS SO ORDERED.

SPECIAL MASTER'S REPORT

Oct. 8, 1991.

MARK R. ABEL, United States Magistrate Judge.

Plaintiff Kazuhito Bacon brings this action under 42 U.S.C. § 2000e-16(c) alleging that in May 1986 the United States Air Force denied him employment because of his race and national origin and in retaliation for his having filed a charge of discrimination against a previous employer. By an Order of August 14, 1991 Judge George C. Smith referred this case to me as a special master. Trial was held September 10 and 11, 1991.

FINDINGS OF FACT

Plaintiff Kazuhito Bacon is 37 years old. He was born in Ehata Fukuoka, Japan. His father is a black American, his mother Japanese. Mr. Bacon has attended Wright State University, Sinclair College, and Central State University. He has a total of 138 quarter hours of college credits. His academic emphasis has been in organic chemistry and biology.

Mr. Bacon has held only one job where he used his academic training. From August 1980 to March 1981, he was employed by the Mead Corporation in Miamisburg, Ohio as a Research Technician II. While so employed, he filed a charge of racial discrimination against Mead. Then Mead discharged him. Mr. Bacon filed suit in the United States District Court in Dayton alleging that Mead discriminated against him because of his race and national origin and discharged him in retaliation for filing the charge of discrimination. Mr. Bacon and the Mead Corporation later settled the lawsuit. The terms of that settlement are confidential.

In 1981, after his employment with Mead terminated, Mr. Bacon worked for 3 weeks as a produce clerk for Metro Stores. Mr. Bacon voluntarily terminated that employment because he felt his job duties were other than those represented to him when he was hired. The same year he was hired by United Parcel Service and completed a one-day orientation. He was told to go home, they would call him with the first days' work schedule. However, they never scheduled him to work.

From 1982 until 1986, Mr. Bacon worked for Crown Temporaries. His longest employment with Crown was 90 days¹ he worked at Monsanto bagging herbicides. Since 1986 Mr. Bacon has always looked for work, but he has not been employed. He has not filed federal income tax returns, because he has had no income.

In early 1986 the Physical Science Laboratory at the Newark Air Force Station sent a Standard Form 52 to the facility's Personnel Office requesting assistance in hiring Physical Science Technicians. Since it is not easy to find qualified applicants for that position in the Newark area, the Personnel Office sent a request February 19, 1986 to the Office of Personnel Management, Dayton Area Office (hereinafter "OPM") that it post the position and forward a certification list of qualified applicants. Joint Exh. 3. OPM posted a notice for the competitive position Physical Science Technician, GS-1311-05 (hereinafter "GS-5 position") with an opening date of March 3 and a closing date of March 7, 1986. Joint Exh. 1.

Plaintiff Bacon filed an application March 3, 1986 on form SF 171. Joint Exh. 2. OPM determined that Mr. Bacon and Cindy L. Garcia were the only qualified applicants for the position, so it placed them on the certification list and sent the list to the Newark Air Force Station.

The Physical Science Laboratory was contemporaneously seeking to fill four Physical Science Technician, GS-1311-07 positions (hereinafter "GS-7 positions"). Ms. Garcia was on a certification list for one of the GS-7 positions, and sometime in May 1986 she was tentatively selected for a GS-7 position.² Joint Exh. 8. That meant that Mr. Bacon was the sole remaining qualified applicant on the GS-5 position certification list.

Mrs. Candice Wright, a Personnel Staffing Specialist in the Personnel Office of the Newark Air Force Station, handled the requests to OPM for certification lists and all other personnel matters related to filling the Physical Science Technician positions. She testified that Robert Swope, the Supervising Chemist of the Physical Science Laboratory and the person making the hiring decisions, did not want to select from a certification list of one for the GS-5 position. So she requested a supplemental certification from OPM March 26, 1986. On April 30, 1986 OPM issued a supplemental certification list adding Timothy D. Rian and Scott N. Bergreen.

When a federal agency hires from a competitive certification list through OPM and the agency wants to hire from the list, it must chose from the top three qualified applicants. OPM ranks the applicants by scores based on their education, work experience and other factors related to the position description qualifications. Veterans are given a preference. A preference eligible veteran has 5 points added to his score.

Mr. Bacon was a preference eligible veteran. His score for the Physical Science Technician, GS-5 position was 85. Mr. Rian and Mr. Bergreen were not preference eligible veterans. Both scored 80. Under the veterans preference laws, the hiring agency cannot hire a non-veteran on the certification list if a preference eligible veteran has an equal or greater score. Since Mr. Bacon was a preference eligible veteran and had a higher score than the other two non-veterans on the list, the only person the Physical Science Laboratory could hire from the Physical Science Technician, GS-5 certification list was plaintiff.

The Physical Science Laboratory Supervising Chemist Robert Swope interviewed the applicants for the Physical Science Technician GS-5 and GS-7 positions. Although the testimony and exhibits do not clearly establish the dates of the GS-7 interviews and the date(s) Mr. Swope's made a final decision on filling those four positions, it appears that the interviews were held at approximately the same time he interviewed Mr. Bacon for the GS-5 position and that he made a final decision to fill the GS-7 positions at about the same time he decided not to hire plaintiff.

On May 16, 1986, Mrs. Wright sent Mr. Bacon an Optional Form 5, Inquiry As To Availability, inviting him to appear for an interview. Mr. Bacon contacted the Personnel Office and arranged to come to the Newark Air Force Station for an interview May 20,...