Clemente v. United States

• Citation: 568 F. Supp. 1150
• Decision Date: 12 August 1983
• Docket Number: No. CV 80-5746-AAH.,CV 80-5746-AAH.
• Parties: Lowene R. CLEMENTE, Plaintiff, v. UNITED STATES of America; United States Air Force, a military department of the United States of America, with Hans M. Mark, Secretary; Ronald J. Bishop, Jr., Harold L. Pray, Charles L. Brower, Phillip G. Seneschal, Harry W. Johnstone, and Jeffrey W. Cook, individually and as officers and/or employees of the United States Air Force, Defendants.
• Court: U.S. District Court — Central District of California

568 F. Supp. 1150

Lowene R. CLEMENTE, Plaintiff, v. UNITED STATES of America; United States Air Force, a military department of the United States of America, with Hans M. Mark, Secretary; Ronald J. Bishop, Jr., Harold L. Pray, Charles L. Brower, Phillip G. Seneschal, Harry W. Johnstone, and Jeffrey W. Cook, individually and as officers and/or employees of the United States Air Force, Defendants.

No. CV 80-5746-AAH.

United States District Court, C.D. California.

August 12, 1983.

COPYRIGHT MATERIAL OMITTED

Hatch & Parent by S. Timothy Buynak, Jr., and Thomas D. Wise, Santa Barbara, Cal., for plaintiff.

Stephen S. Trott, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civ. Div. by and through Peter R. Osinoff and Kathryn W. Tate, Asst. U.S. Attys., Los Angeles, Cal., for defendants.

DECISION

HAUK, District Judge.

This matter came on for nonjury trial on May 23, 1983, and continued thereafter for 19 days until June 21, 1983, whereupon argument was heard. Thereafter, the Court took the matter under consideration and submission.

Plaintiff is a White Caucasion citizen of the United States who, at all times herein mentioned, was and now is employed as a General Schedule (hereafter "GS") civil service employee at Vandenberg Air Force Base, California. Her positions have been primarily in the computer and data automation fields. By this action plaintiff seeks two types of relief: First, equitable relief flowing from alleged employment discrimination based on race in connection with a reduction in force (hereafter "RIF") that was effective on July 17, 1977. It is also alleged that reprisal discrimination occurred as a result of the filing of a "RIF" appeal. These claims are brought under 42 U.S.C. § 2000e-16 (Title VII of the Civil Rights Act of 1964, as amended) and 28 U.S.C. § 1331.

Secondly, and in addition to the above claims, plaintiff contends that she is entitled to damages for the alleged violation of her constitutional right to due process arising out of the defendants' failure to fully process her claims after Judgment of this Court remanding to the Air Force all proceedings on April 30, 1980. The jurisdictional support for this claim is also 28 U.S.C. § 1331.

The factual basis of this action is extremely complex and may be effectively analyzed only by focusing on three relevant time periods.

I FACTS PRIOR TO THE JULY 17, 1977 RIF

Plaintiff has been a Civil Servant of the Federal Government since 1958 and has been assigned to Vandenberg Air Force Base, California since 1965. In 1968, plaintiff was promoted to a GS-7, Computer Operator position in Base Supply. In 1971, this position was downgraded to a GS-6, Step 9, as a result of a base-wide classification downgrade for all computer operators. On December 8, 1974, plaintiff was promoted to the position of Electronic Accounting Machine (hereafter "EAM") Project Planner, GS-362-07, with the 6596th Instrumentation Squadron, Operations Support Branch. Her grade level was that of a GS-7, Step 8. Following this promotion, plaintiff performed well in the opinion of her superiors until the beginning of 1976.

In 1976, plaintiff's immediate supervisors were changed and replaced by Black individuals. Thereafter, plaintiff alleges, these individuals conspired and attempted to undermine plaintiff and have her removed from her position. It is contended that this removal from office was effectuated through a RIF, following a period of tension between plaintiff and her new superiors. The RIF was requested on April 13, 1977 by Master Sergeant Bruce Daniels, a Black. In anticipation of this action, plaintiff filed a telegram appeal with the Civil Service Commission on April 8, 1977. This appeal was dismissed on June 7, 1977, as being premature. Thereafter, plaintiff retained Leonard A. Newton, Esq., an attorney in Santa Maria, California, to assist in the processing of her complaint. Newton advised plaintiff not to communicate with Air Force personnel and indicated that he would assume responsibility for the processing of her complaint. Plaintiff testified that after retaining Newton and receiving his advice, she "left the matter fully in his hands."

The above-mentioned RIF was actuated on May 12, 1977, and upon plaintiff's acceptance of the only alternative position offered, she was transferred into a temporary position at the Base Legal Office. She remained at this position until July 17, 1977, the effective date of the RIF, at which time she was placed in her present position as a Computer Operator, GS-6, Step 10. On this same day Newton sent a telegram to the Federal Employee Appeals Authority (hereafter "FEAA") appealing the RIF action, stating that the RIF was the consequence of "inverse racial discrimination and personality dislikes on the part of plaintiff's superiors." In addition to this telegram, Newton sent a letter to the FEAA charging that the plaintiff's downgrade was the "result of an artificially created reduction in force."

II FACTS SUBSEQUENT TO THE RIF

On July 18, 1977, the FEAA corresponded with Civilian Personnel Officer William Coady of Vandenberg Air Force Base indicating that two alternative methods of appeal were available to process plaintiff's complaint, these methods being set forth in Part 713 and Part 351 of the Civil Service Commission's Regulations. The FEAA requested the Civilian Personnel Office to secure plaintiff's election to process under one of these regulations "in writing," and requested it to inform plaintiff of certain rights she had and the method of processing under each regulation. Plaintiff's written election of the method of processing was to be secured within ten days of receipt of the July 18, 1977 letter to the Civilian Personnel Office. On July 26, 1977, Civilian Personnel Officer Coady forwarded the July 18, 1977 letter of the FEAA to plaintiff, requesting her to make an election as to the procedure under which she intended to proceed and admonishing her that "further action on the appeal is delayed until your choice of procedures is provided to us in writing." At trial, plaintiff testified that she received Mr. Coady's letter with the FEAA letter attached. She noted that Newton had received a copy of the FEAA letter. Thereafter plaintiff communicated with Newton who advised her not to respond to either of these letters and that a resolution of the matter was forthcoming. Plaintiff was not contacted again that year by the Civilian Personnel Office despite her continuing daily work presence at Vandenberg Air Force Base.

Plaintiff was in contact with her attorney, Newton, for the last time in December, 1977, when he assured her that he had filed a complaint and a hearing had been set in the distant future. During the period between July 26, 1977 and February 7, 1978, two requests were made by the FEAA for a response from the Base to its letter of July 18, 1977. On February 7, 1978, Mr. Coady responded to the FEAA stating that no response had been received from the plaintiff to its request that she make an election of procedures. Mr. Coady did not make any further attempt to contact plaintiff or her attorney during this period. On February 21, 1978, the FEAA sent a letter to Newton notifying him that the plaintiff's "Part 351" appeal (5 C.F.R., Part 351) had been cancelled. The plaintiff also received this letter.

Plaintiff testified at trial that, because of the repeated assurances of Newton, she interpreted the February 21, 1978 letter from the FEAA to mean that her "Part 713" appeal (5 C.F.R., Part 713) was still progressing. However, subsequent to receiving this letter, she became suspicious that her attorney was not handling the case in a proper manner and attempted to contact him. Following numerous attempts to reach Newton by telephone and by mail and receiving no response, plaintiff engaged the services of her present attorney, Timothy S. Buynak, Esq. of Santa Barbara. Thereafter, Buynak did a thorough search of state and federal court records to determine the status of plaintiff's "case," as presumably filed by her first attorney, Newton. Having no success in locating any action filed on behalf of plaintiff, Buynak endeavored to contact Newton by telephone and numerous letters. It was eventually discovered that Newton was the subject of disbarment proceedings before the California State Bar. Newton's attorney in those proceedings was requested to advise Newton to contact Buynak concerning plaintiff's case. On October 2, 1978, portions of plaintiff's file were sent to her new attorney, Buynak, from Newton, together with the information that the only filing that he had made was with the FEAA.

On October 25, 1978, Buynak wrote to both the Civilian Personnel Office at Vandenberg and the FEAA, informing each that plaintiff assumed her claim was being processed under Part 713. On October 27, 1978, the FEAA responded to this letter stating that the Part 351 appeal had been cancelled and that the Part 713 appeal was to be handled by the employing agency, namely, the U.S. Air Force at Vandenberg Air Force Base. On November 6, 1978, Mr. Coady, the Civilian Personnel Officer at Vandenberg, replied to attorney Buynak's October 25, 1978 letter advising him that no action had been taken on the Part 713 appeal. Four days later Buynak responded to Mr. Coady requesting that the agency begin Part 713 processing because plaintiff was "ready, willing and able to cooperate" with the agency in processing her complaint. Civilian Personnel Officer Van Nice responded, directing that plaintiff should contact Chief EEO Counselor Carol McCool. After this was accomplished by Buynak, Ms. McCool assigned Joanne Tomlinson as counselor in the matter. An initial interview with plaintiff was held by Ms. Tomlinson on February 2, 1979, at which time plaintiff's claims of improper and discriminatory RIF were considered, as well as her secondary complaints of reprisal, and denial of re-employment priority status with...