Becerra v. Dalton

• Decision Date: 26 August 1996
• Docket Number: No. 95-2582,95-2582
• Citation: 94 F.3d 145
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 1236, 68 Empl. Prac. Dec. P 44,244 Francisco B. BECERRA, Plaintiff-Appellant, v. John H. DALTON, Secretary of the Navy, Defendant-Appellee, and Frank B. Kelso, II, Admiral, Acting Secretary, U.S. Department of the Navy, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 145

94 F.3d 145

71 Fair Empl.Prac.Cas. (BNA) 1236,

68 Empl. Prac. Dec. P 44,244

Francisco B. BECERRA, Plaintiff-Appellant, v.John H. DALTON, Secretary of the Navy, Defendant-Appellee and Frank B. Kelso, II, Admiral, Acting Secretary, U.S Department of the Navy, Defendant.

No. 95-2582.

United States Court of Appeals Fourth Circuit.

Argued May 10, 1996.

Decided Aug. 26, 1996.

ARGUED: Susan L. Dolin, Muchnick, Wasserman & Dolin, Hollywood, Florida, for Appellant.Kathleen O'Connell Gavin, Assistant United States Attorney, Baltimore, Maryland, for Appellee.ON BRIEF: Solaman G. Lippman, Lippman & Associates, Washington, D.C., for Appellant.Lynne A. Battaglia United States Attorney, Baltimore, Maryland, for Appellee.

Before RUSSELL and LUTTIG, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

Affirmed by published opinion.Senior Judge CHAPMAN wrote the opinion, in which Judge RUSSELL and Judge LUTTIG joined.

OPINION

CHAPMAN, Senior Judge:

AppellantFrancisco B. Becerra brought this Title VII action in the District Court for the District of Maryland.Becerra, a former civilian employee of the United States Navy, alleged that the Navy discriminated against him on the basis of sex and national origin.He also alleged that the Navy retaliated against him after he filed his EEO complaints by revoking his security clearance.The Navy moved for partial summary judgment claiming that the decision to revoke Becerra's security clearance was not subject to judicial review.The district court granted this motion.The defendants then moved for summary judgment as to plaintiff's other claims arguing that he failed to produce any evidence of discriminatory intent.The district court granted this motion.We affirm.

I.

Becerra began working for the Navy on September 12, 1983 as a civilian employee in the Office of Naval Intelligence("ONI"), headquartered in Suitland, Maryland.Becerra, a United States born Hispanic, was fluent in several languages and had experience in military intelligence.He was an emigre debriefer for Task Force 168, a section of ONI, which is engaged in human source intelligence collection worldwide.

In August, 1984, Commander David Muller was appointed operations officer of Task Force 168 and also commander of the smaller Task Group 168.0, a division within Task Force 168 involved in domestic human intelligence gathering.As commander of Task Group 168.0, Commander Muller set up new field offices across the United States.Because of Becerra's fluency in Spanish and his familiarity with the Hispanic community, Muller chose Becerra to head the Miami, Florida office.

Maria Pallas was also a civilian employee of Task Force 168.She was hired as a Polish linguist, but rapidly advanced, eventually reaching the position of Overt Program Manager of Human Intelligence.Becerra alleged that Pallas traded sexual favors with her superiors, especially Muller and Captain Roland Saenz, commander of Task Force 168, to achieve her success.

Muller's duties as both commander of Task Group 168.0 and operations officer of Task Force 168 became burdensome, and to give him some relief, the position of Deputy Commander of Task Group 168.0 was created and Pallas was named to this position.Muller soon realized that he could not remain commander of Task Group 168.0 and also fulfill his duties as operations officer of Task Force 168.The Navy was unable to provide an active duty military officer to fill the 168.0 position, and Captain Saenz decided to create the entirely new position of Supervisory Intelligence SpecialistCTG 168.0, which could be held by a civilian, to head the Task Group's activities.

On July 1, 1988, Pallas entered this new position, replacing Muller as commander of Task Group 168.0.Pallas was detailed to the position, i.e., her appointment was temporary until this new position could be competed and a suitable candidate hired.Becerra maintains that no employees were informed that the position was temporary and that it would later be competed.He claims that the Navy had no intention of opening the position to competition until he complained.However, the personnel office at ONI issued a Notice of Personnel Action, the mechanism by which Pallas was transferred to the position, two months before Becerra made his first complaint.That document clearly indicated that Pallas was detailed to the position for a period not to exceed 120 days.

Saenz and Pallas visited Miami in early August, 1988.During the visit, Saenz, Pallas, and Becerra visited a local, high-ranking official.Becerra did not wear a coat and tie but instead wore a guayabera, an open-necked shirt often worn in the Hispanic community and, according to Becerra, acceptable business attire in Miami.After returning to Maryland, Pallas sent Becerra a letter pointing out problems that she had noticed on her visit.The letter covered the office's production, collections, personnel, telephone bills, and Becerra's personal appearance and professional etiquette.Pallas mentioned Becerra's style of dress, stating "I recommend you wear a jacket and tie when calling on the Admiral or the Chief of Staff (Coast Guard).Miami is casual, but this still is a military organization."

After receiving this letter, Becerra, who was unhappy with its contents, talked to Captain Saenz about it.The two met briefly at Dulles Airport on September 14, 1988 to discuss it.Saenz then arranged a meeting on October 14, 1988 with himself, Pallas, Becerra, and a representative from the human resources department.In this meeting, Becerra expressed concerns about Pallas' managerial skills.Pallas and Becerra then met alone and emerged with the understanding that they were going to move on and work together.In his monthly report following this meeting, Becerra reported the meeting and stated that he and Pallas had agreed to disagree.He sent this report, via the Task Force's messaging system, to the entire Task Force.

Captain Lesley, second-in-command of the Task Force, contacted Pallas after reading Becerra's message.He told Pallas that he considered Becerra's comments insubordinate and inappropriate and recommended that she restrict Becerra's message authority.After this, Pallas ordered Becerra to send all messages through headquarters and not to the entire Task Unit.Any message that needed to be forwarded to other individuals would be relayed through headquarters.Becerra claims that this restriction effectively shut his operation down.

On September 28, 1988, the Navy announced the vacancy for the position of commander of the Task Group, the position that Pallas was temporarily holding.After this announcement, Becerra sent a message to headquarters requesting clarification of the vacancy announcement because he felt that Pallas had been preselected for the position.Saenz replied that Pallas had been detailed to the position and that "[a]ll qualified applicants will be considered by a selection board."

Thirteen candidates applied for the position.A panel was selected to review the application packages, pick out the best qualified, and then rank them numerically for Captain Saenz, the selecting official.The panel chose four finalists.The panel gave Pallas a perfect score of 56 and Becerra the second highest score of 55.Captain Saenz, relying on the panel's scores, the application packages, and his knowledge of the individual candidates, chose Pallas for the position.

Becerra claims that this selection was tainted in several ways.First, one of the panel members was Pallas' close friend; second, Muller, who Becerra claims was receiving sexual favors from Pallas lobbied Saenz on behalf of Pallas; third, Muller was the officer that drew up the crediting plan for the position.This crediting plan listed the experience criteria, and Becerra claims that it was tailored to match Pallas' experience.

Saenz testified that he found that Pallas was the superior candidate.He also testified that he did not believe that any of the other three finalists were qualified to fill the position, and that he would have recompeted the position rather than select one of those three.

After Pallas' appointment to the position, Becerra attempted to telephonically file an EEO complaint.He was told that he must travel to Washington to file a complaint in person, which he did.Becerra claims that the Navy retaliated against him because of his filing the EEO complaint in the following ways: Pallas' second-in-command told him that he better find another job, Pallas would not allow him time to process his complaint until she was told that she must, employees of Task Force 168 were instructed to provide headquarters with whatever negative details they could find on Becerra, and Pallas threatened to file an EEO complaint against him.

In November, 1988, the Navy began a security investigation on Becerra based on confidential information that Becerra claims the Navy knew or should have known was false.Becerra's security clearance was suspended on January 5, 1989.He was placed on administrative leave pending further investigation.On October 24, 1989, the Navy discharged Becerra based on his lack of security clearance.He appealed his discharge to the Merit Systems Protection Board which ordered Becerra reinstated to his position.The Navy discharged Becerra again on July 6, 1990; this prompted him to file his second EEO complaint on August 16, 1990.

More than two years later, Becerra discovered a "wanted" poster in his mailbox with him as the subject.He claims that the poster was on Navy paper and sent through government mails.This poster was derogatory and mentions his Hispanic heritage.

The district court granted partial summary judgment for the defendant as to the claim of retaliation based upon defendant's instigation of a security clearance investigation relying upon the Supreme Court's decision in Department of the Navy...