Gnotta v. United States
| Decision Date | 10 September 1969 |
| Docket Number | No. 19502.,19502. |
| Citation | 415 F.2d 1271 |
| Parties | Louis J. GNOTTA, Appellant, v. UNITED STATES of America; the United States Civil Service Commission; the Department of the Army, Kansas City District Corps of Engineers; Colonel W. G. Kratz; M. F. Hoy; D. H. Myers; M. M. Turner; O. E. Pettijohn; F. M. Nelson; H. B. Haworth, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
COPYRIGHT MATERIAL OMITTED
Rodger J. Walsh, Kansas City, Mo., submitted brief for appellant.
Paul Anthony White, Asst. U. S. Atty., Kansas City, Mo., for appellees, Calvin K. Hamilton, U. S. Atty., and John L. Kapnistos, Asst. U. S. Atty., filed brief for appellees.
Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.
Louis J. Gnotta appeals from the dismissal of his three-count complaint based on his not receiving a promotion in 11 years of work with the Corps of Engineers, Kansas City District, Department of the Army. His claim is that this absence of promotion was due to discrimination against him because of his Italian ancestry.
The defendants are the United States; the United States Civil Service Commission; the Department of the Army, Kansas City District, Corps of Engineers; Col. W. G. Kratz, district engineer and principal supervisor; M. F. Hoy, district controller and executive assistant; D. H. Myers, chief personnel officer; M. M. Turner, assistant chief of the engineering division; O. E. Pettijohn, chief of the real estate division; F. M. Nelson, assistant chief of the real estate division; and H. B. Haworth, supervisor.
By the first count of his complaint the plaintiff seeks review of the decision of the Board of Appeals and Review of the United States Civil Service Commission; by its second count he seeks a writ of mandamus to compel the individual defendants to perform duties said to be imposed upon them by Equal Employment Opportunity regulations; and by its third count he seeks $10,000 damages. Jurisdiction is claimed, for the respective counts, under the Administrative Procedure Act, now 5 U.S.C. §§ 701-706; the Act of October 5, 1962, Pub.L. No. 87-748, § 1(a), 76 Stat. 744, now 28 U.S.C. § 1361; and the Tucker Act, 28 U.S.C. § 1346(a) (2).
The defendants, through the United States Attorney, filed an answer to the complaint and, thereafter, a motion to dismiss or, in the alternative, for summary judgment. Judge Oliver granted the motion to dismiss and did so "for want of proper jurisdictional allegations in plaintiff's complaint." The court's supporting memorandum is not reported. Gnotta appeals.
The administrative proceeding. Mr. Gnotta filed his administrative complaint under regulations issued pursuant to Executive Order No. 11246 of September 28, 1965, 30 F.R. 12319, 2 U.S.Code Cong. & Ad.News, p. 4416 (1965), entitled, "Equal Employment Opportunity",1 and, assertedly, under the thereby superseded Executive Order No. 10925 of March 8, 1961, 26 F.R. 1977, 1 U.S.Code Cong. & Ad.News, p. 1274 (1961).
The ensuing agency hearing took place in October 1966, lasted four days, produced a four-volume transcript of 966 pages, and brought out certain undisputed facts:
Plaintiff Gnotta was born July 3, 1922, of Italian parents in Kansas City, Missouri. He is a World War II veteran, attained the rank of sergeant, was awarded the Purple Heart with Oak Leaf Cluster and two battle stars, and received an honorable discharge from the service. He was employed by the Corps of Engineers in November 1955 as a cartographic compilation aide at grade GS-7. He has never been promoted out of that grade. He has a high school education and some engineering training. He is a civil defense instructor. He has an AEC license to handle cobalt 60. In 1956-57 he passed certain civil service written examinations for professional engineering. He is registered with the Missouri State Board of Registration for Architects and Professional Engineers as an engineer-in-training (Mo.Rev.Stat. § 327.150 and § 327.035, subd. 2 (1959)). Since July 25, 1960, he has filed numerous applications for promotion with respect to vacancies with the Corps. He has not been chosen for any of these. He does not possess a security clearance. He has not been selected for further training. No one else has been held so long in the District without a promotion. There are no Italians there above grade GS-12
The hearing, however, produced conflict as to other facts which bear upon Gnotta's claim of discrimination because of national origin:
Defendant Haworth, Mr. Gnotta's supervisor until 1960, and, apparently, the pivotal figure in Gnotta's discomfort, testified that he felt no animosity toward Gnotta. Other witnesses stated that friction or animosity existed between the two men. When Gnotta joined the Corps, he and Haworth were both in GS-7. Haworth, however, has been promoted to GS-11. The two men have hardly spoken for a number of years. Haworth acknowledged that he had talked to Gnotta only once since 1960. He denied that he had discriminated against him because of his national origin or in any way. Witness Herbert, who had worked with Mr. Gnotta under Mr. Haworth, said that Haworth once told him he should not associate with Gnotta. Witness Vaught, who also worked with Gnotta, said that Haworth told him he would not be promoted if he associated with Gnotta. Haworth denied that he told Vaught and Herbert not to associate with Gnotta.
On the other hand, a number of witnesses (Herbert, Brayles, Montanari, Giorga, Davis, Norman Smith, Frederickson, Corolla, Lee, Haworth, Hoy, Edward C. Smith, Lowe, Nelson, Pettijohn, Valenstein, and Rollings), some of them of obvious Italian descent, testified, or by affidavit stated, that they did not think Gnotta was discriminated against because of his national origin, or that they knew of no discrimination against Italians in the Corps, or that they themselves did not discriminate. Other witnesses (D'Marco and Van Orman) felt or suspected that there was discrimination and still others (Vaught and Thomas) felt that it was directed against Gnotta.
Mr. Gnotta stated that he never had an Italian supervisor; that in the Kansas City community at least 10 per cent of the people are of Italian origin; that the newspapers there are prejudiced against Italians; that he was not given proper equipment; that he was denied counseling and self-improvement; and that he is the only one in his group regularly excluded from management activities.
The hearing officer made recommendations and the Deputy Equal Employment Opportunity Officer held that the evidence did not support the allegations of discrimination. The Board of Appeals and Review of the United States Civil Service Commission affirmed this decision in September 1967. The administrative remedies were thus exhausted. The present suit followed.
Mr. Gnotta's argument is that he is entitled to due process; that although the Executive Order does not expressly provide a right of action, this does not prevent a federal court's fashioning an appropriate and effective remedy, citing Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); that the Executive Order has the force and effect of a statute; and that it creates the right and the Jones case creates the remedy.
One is inclined, initially and on the face of plaintiff Gnotta's testimony at the administrative hearing, to have a measure of sympathy for him for he is, in a sense, "bucking the establishment" or what seems to him to be an inflexible employment hierarchy. One easily senses his frustration with so long a work period without promotion, with a non-communicating former supervisor, with co-workers promoted over him, and with the daily discomfiture of a personality conflict. Contrastingly, one might note that the plaintiff chose to be sensitive about, rather than to assert rightful pride in, his Italian ancestry.
It may be conceded, as the plaintiff urges, that a public employee is entitled to a distinct measure of due process with respect to his employment. This court enunciated that principle as to procedural due process in Jenkins v. Macy, 357 F.2d 62, 68-70 (8 Cir. 1966), where a federal employee's discharge was at issue, and we there cited the fourteenth amendment cases of Slochower v. Board of Higher Educ., 350 U.S. 551, 556, 76 S.Ct. 637, 100 L.Ed. 692 (1956), and Wieman v. Updegraff, 344 U.S. 183, 191-192, 73 S.Ct. 215, 97 L.Ed. 216 (1952), with their self-incrimination and loyalty oath contexts. And, as the plaintiff points out, appropriate compliance with procedural requirements also was stressed in federal employee situations in Connelly v. Nitze, 130 U.S.App.D.C. 351, 401 F.2d 416 (1968), and McTiernan v. Gronouski, 337 F.2d 31 (2 Cir. 1964).
As the plaintiff further observes, it has been said that Executive Orders such as Nos. 11246 and 10925 are to be accorded the force and effect of an act of Congress. Farkas v. Texas Instrument, Inc., 375 F.2d 629, 632 (5 Cir. 1967), cert. denied, 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 471; Farmer v. Philadelphia Elec. Co., 329 F.2d 3, 8 (3 Cir. 1964). In each of these two cases, however, the court observed that the Executive Order did not contemplate its enforcement by private civil action, 375 F.2d at 632-633 and ns. 2 and 3; 329 F.2d at 8-10, and pointed the way to enforcement, instead, through the President's Committee on Equal Employment Opportunity or, possibly, in proper fact situations, under the Civil Rights Act of 1964. These are avenues which plaintiff Gnotta does not pursue.
Chapter 7 of Title 5 U.S.C. concerns judicial review of agency action. Section 702 provides that a person "suffering legal wrong because of agency action * * * is entitled to judicial review thereof." Section 706(1) provides that the reviewing court shall compel agency action unlawfully withheld. But § 701 (a) (2) specifically states that the chapter does not apply where "agency action is committed to agency discretion by law."
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