Cartagena v. Secretary of Navy, 79-1501

• Decision Date: 06 March 1980
• Docket Number: No. 79-1501,79-1501
• Parties: 22 Fair Empl.Prac.Cas. 275, 22 Empl. Prac. Dec. P 30,725 Victor Rosario CARTAGENA, Plaintiff, Appellant, v. SECRETARY OF the NAVY of the United States, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 130

618 F.2d 130

22 Fair Empl.Prac.Cas. 275,

22 Empl. Prac. Dec. P 30,725

Victor Rosario CARTAGENA, Plaintiff, Appellant, v. SECRETARY OF the NAVY of the United States, Defendant, Appellee.

No. 79-1501.

United States Court of Appeals, First Circuit.

Argued Feb. 6, 1980.

Decided March 6, 1980.

Norman Torres Vidal, San Juan, P. R., on brief for appellant.

Vilma J. Vila Selles, Asst. U. S. Atty., San Juan, P. R., argued, with whom Jose A. Quiles, U. S. Atty., San Juan, P. R., was on brief, for appellee.

Before COFFIN, Chief Judge, WISDOM, Senior Circuit Judge ^*, CAMPBELL, Circuit Judge.

PER CURIAM:

We affirm the district court's decision and adopt its opinion. See Appendix.

APPENDIX

United States District Court

D. Puerto Rico.

Victor Rosario Cartagena,

Plaintiff,

v.

The Secretary of the Navy,

Defendant.

Civ. No. 78-195.

DECISION AND ORDER

TORRUELLA, District Judge.

Plaintiff is a native born Puerto Rican who sought promotion to position of Fire Chief, Naval Security Group Activity, Sabana Seca, Puerto Rico. Plaintiff was not promoted and instead a former Fire Chief, a continental born American, was repromoted to this vacant position. Plaintiff claims the action in not promoting him was discriminatory in nature and grounded solely on the basis of national origin. This action is brought pursuant to Title VII of the Civil Rights Act of 1964 at 42 U.S.C. §§ 2000e-2000e-17, as amended by the Equal Employment Opportunity Act of 1972, Pub.L.No.92-261, 86 Stat. 103. Jurisdiction is founded on 42 U.S.C. § 2000e-5(f)(3) and § 2000e-5. It is now before us on Defendant's Motion for Summary Judgment. Plaintiff's opposition also prays for Summary Judgment in its favor.

Plaintiff's cause of action is predicated on the theory that he was denied appointment to the position of fire chief solely because he is a native born Puerto Rican. The thrust of his argument, and indeed the basic premise of his cause of action, is that he was in fact the better qualified candidate but that the appointment was conferred on someone else taking into consideration factors other than qualification and ability. The Defendant counters that Plaintiff initially failed to establish his qualifications. Even accepting that Plaintiff was fully qualified, the Defendant contends that applicable federal statutes and regulations mandated that another applicant be accorded priority consideration and it is on this basis that Plaintiff was not appointed. Defendant emphatically denies that its action in not promoting Plaintiff was in any way tainted with a discriminatory animus. Our inquiry turns to whether Plaintiff's allegations or proffered evidence can sustain a Motion for Summary Judgment.

Section 2000e-2(a)(1), 42 U.S.C., provides that it shall be unlawful:

"(1) to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin;"

In similar fashion Section 2000e-16(a) states that:

"(a) All personnel actions affecting employees or applicants for employment . . . in military departments as defined in Section 102 of Title 5, . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." ¹

When faced with a claim of employment discrimination a Court's inquiry into the merits of a claim, i. e., the order and nature of proof required for relief, must necessarily be scrutinized under the guidelines established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas a plaintiff bears an initial burden of establishing at the outset a prima facie case of illegal discrimination. To do so he must in general terms first demonstrate:

(1) that he belongs to a protected class (here national origin)

(2) that he applied and was qualified for the promotion for which the vacancy was announced.

(3) that despite these qualifications he was rejected.

(4) that after his rejection the position remained open; or in our particular setting, that a lesser qualified person was hired before him. ² (See: McDonnell Douglas, supra, p. 802, 93 S.Ct., p. 1824.

Once a Plaintiff meets this initial burden the inference is presented that an illegal discrimination has occurred. See: Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). But a prima facie showing is not the end but the beginning of the inquiry. "A prima facie under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Furnco Construction, supra, at p. 577, 98 S.Ct., at p. 2949.

The second step of a McDonnell Douglas analysis is activated after a prima facie case has been presented. At this point the burden shifts to the employer and he must then "articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at p. 802, 93 S.Ct. at p. 1824. It is vital to note that the burden resting on the employer is not that of proving a total absence of discriminatory motive in not hiring or promoting, see: Bd. of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216, vacating Sweeney v. Bd. of Trustees of Keene State College, 569 F.2d 169 (C.A. 1, 1978), ". . . rather it is a burden of production", Loeb v. Textron, Inc., 600 F.2d 1003, 1011 (1st Cir. 1979). "(U)nder Furnco and McDonnell Douglas the employer's burden is satisfied if he simply 'explains what he has done' or 'produc(es) evidence of legitimate nondiscriminatory reasons." Sweeney, supra, 439 U.S. at 25 n.2, 99 S.Ct. at 296; see also: Loeb v. Textron, Inc., supra, at p. 1011.

The third step of the McDonnell analysis affords the Plaintiff a "fair opportunity to show that (the employer's) stated reason for (plaintiff's) rejection was in fact pretext." McDonnell Douglas, 411 U.S. at p. 804, 93 S.Ct. at 1825. With respect to final adjudication of relief: "The ultimate burden of persuasion on the issue of discrimination remains with the Plaintiff, who must convince the Court by a preponderance of the evidence that he or she has been the victim of discrimination." Sweeney, 569 F.2d at 177. See: Loeb, supra; Blizard v. Fielding, 572 F.2d 13, 15 (C.A. 1, 1978). Against this background of shifting burdens and order of proof we proceed to analyze the pending Motions.

We first examine those material facts not generally in dispute. On February 6, 1976 Vacancy Announcement Number 76-008 was issued on the position of Fire Chief, Naval Security Group Activity, Sabanca Seca. Certain qualification requirements were listed, which included: general experience 1 year, firefighting experience 21/2 years, supervising experience 1/2 year. This position was classified as Fire Chief GS-081-07. Plaintiff, who at the time was a firefighter, believed he met these requirements and applied for the promotion. Three other persons also filed applications under this vacancy announcement. Of these applicants three were continental born Americans and one, Plaintiff, was a native born Puerto Rican. Three of the applicants were found disqualified because they did not meet the specialized qualification requirements, to wit, six months of supervisory experience. See Exhibit C, pgs. 7-17. On this vacancy John Q. Massey was selected because of the ineligibility of the other applicants. Thereafter Plaintiff filed a request that John Q. Massey's promotion be revoked because he did not meet the physical requirements for the job and because Plaintiff felt himself to be the superior candidate. No action was taken on this request because immediately thereafter the original announcement was cancelled and a new Vacancy Announcement issued which eliminated the requirement for supervisory experience. ³ On this second vacancy the Personnel Office of the Roosevelt Roads Naval Station certified John Q. Massey's name as a priority referral. The basis for this priority was because John Q. Massey had served as Fire Chief during 1960-1973. In accordance with the Federal Personnel Manual, Subchapter 4-3-c(2) such demotion without personal cause entitled Mr. Massey for special consideration for repromotion. See: Appendix to Answers to Defendant's Interrogatory. ⁴ Defendant states that Mr. Massey was selected in observance of this directive.

On the basis of the record before us it is difficult to find that Plaintiff has established a prima facie case of illegal discrimination under McDonnell Douglas. There is no dispute that Plaintiff is a native born Puerto Rican and as such this is distinguishable from other ethnic nationalities, so as to constitute a definable class. But this is the only requirement that Plaintiff has fully met. The second McDonnell requirement compels a Plaintiff to show that he was qualified for the position sought. Plaintiff's first application for the promotion failed to state the requisite supervisory experience. ⁵ Insomuch as he failed to show he was qualified he has, a fortiori, failed to show that he was rejected despite being qualified.

Assuming, arguendo, that Plaintiff had in fact presented a prima facie case of discrimination, ⁶ Defendant's explanations for the rejection and the promotion of John Q. Massey present a sufficient rebuttal under the second step of a McDonnell Douglas analysis.

First, John Q. Massey was promoted under a facially neutral seniority system: Subchapter 4-3 c(2) of the Federal Personnel Manual. Title VII exempts such systems from constituting discrimination. Under 42 U.S.C. § 2000e-2(h) "it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system,...