Gomez v. City of South Bend

Decision Date28 March 1985
Docket NumberNo. S 82-320.,S 82-320.
Citation605 F. Supp. 1173
PartiesRamiro GOMEZ, Plaintiff, v. CITY OF SOUTH BEND, Defendant.
CourtU.S. District Court — Northern District of Indiana

COPYRIGHT MATERIAL OMITTED

Aladean M. DeRose, South Bend, Ind., for plaintiff.

Richard Hill, City Atty., Thomas L. Bodnar, Chief Deputy City Atty., South Bend, Ind., for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This case is an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for alleged discrimination on the basis of national origin and under 42 U.S.C. § 1983 for alleged violations of the plaintiff's rights under the First and Fourteenth Amendments to the Constitution of the United States. This case was tried by the court without a jury on February 21 and 22, 1985 and the parties were given until March 4, 1985 to file memoranda in support of their respective positions, which they have done. This Memorandum and Order contains the findings of fact and conclusions of law thereon pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT

Plaintiff, Ramiro Gomez, a male hispanic, first came to the South Bend area in the summer of 1972 and stayed here until September 1973. During that time he voted in elections here but did not take any part in politics beyond voting. Mr. Gomez returned to the South Bend area in 1977 and worked at IUSB from November 1977 to March 1980 when he accepted a job with the St. Joseph County CETA program. In October 1980, the St. Joseph County CETA program was merged with the CETA program in the City of South Bend. At that time, plaintiff was hired as an EEO Specialist with the newly formed CETA consortium. In July 1981, Mr. Gomez was informed that his position was being eliminated due to a reduction in force and that he would be laid off, which he was in September 1981. During this time, plaintiff voted in elections and declared himself a Democrat for purposes of voting in the primaries. However, plaintiff made no political contributions to any party and did not campaign for any candidate for political office.

In July 1981, Mr. Gomez applied for the position of Assistant Personnel Director/Equal Employment Opportunity Officer for the City of South Bend by submitting his application to a personnel officer for the City. On the date of his application, Ramiro Gomez had a Master's degree with a concentration in public management and personnel. He was the EEO specialist for the CETA Consortium and had supervised the Community and Institutional Research Services program at IUSB for two years. He was also a former Marine Corps sargeant serving in Vietnam and in the Reserves.

Plaintiff testified in his deposition that he did not contact the City again with respect to the Assistant Personnel Director/EEO Officer position until September 1981 when he returned a phone call to Carolyn Threatt in response to a phone message received at his office while he was gone for unknown reasons. In the return call, Mr. Gomez was informed by Carolyn Threatt that he had been granted an interview for the Assistant Personnel Director/EEO Officer position but that his interview slot had been filled and that the interview would be rescheduled. According to the deposition of plaintiff, he did not contact the City again with respect to the job opening until approximately three weeks later and was informed that the position had been filled. However, the testimony of Carolyn Threatt and Fran Onion, both very credible witnesses, testified that the interviews were scheduled in late August 1981. Further, Mr. Jon Oppenheim was hired September 7 or 8, 1981 and the unsuccessful candidates for the position were notified in a letter dated September 8, 1981 of the employment decision. Mr. Kernan, also a very credible witness, testified that the hiring decision was made no more than a few days before the actual hiring. Based on these inconsistencies, the court's ability to observe Carolyn Threatt, Fran Onion and Mr. Kernan testify and the inability to observe plaintiff because he did not appear for trial, the court finds that the testimony of the three are more credible than the deposition testimony of plaintiff. Mr. Gomez filed a complaint with the South Bend Human Rights Commission on September 10, 1981.

The position of Assistant Personnel Director became open in 1981. The job description was then revised to add Equal Employment Opportunity duties prior to the posting of the job vacancy notice. Qualifications for the position were described as "any combination equal to a college degree in industrial and labor relations and 2 years experience in labor relations" as well as writing, analytical, legal interpretive abilities and inter-personal skills. The duties of this position included preparatory contract negotiations, administration of collective bargaining agreements, grievance processing, affirmative action plan implementation and administration, among other things. A job vacancy notice with respect to the Assistant Personnel Director/EEO Officer position was sent to all City departments, the CETA Consortium, the Personnel Department for St. Joseph County as well as a number of other organizations, and was posted in the lobby of the County-City Building in South Bend. Ten applications for the position were received including two hispanics and five individuals were selected for a formal interview, including the plaintiff Ramiro Gomez, one of the hispanic applicants. Two of those selected for interviews were city employees and three were employees of the CETA Consortium. Two of those selected were white males, two were white females and one hispanic. The interviews were set up on very short notice and all persons selected for an interview were treated similarly. Fran Onion had her interview a few hours after the initial contact, Mike Seitz had his interview on the same day that he was called and Jon Oppenheim had less than a one day notice. Fran Onion, a secretary at the CETA Consortium testified that she took a call from the City Personnel Department early one afternoon for Ramiro Gomez. She looked diligently for plaintiff on both floors of the building occupied by the CETA Consortium, checked with the switchboard operator and with Gomez' boss and used the paging system in the building in an effort to locate plaintiff, but was unsuccessful. She further testified that she left a note propped up on plaintiff's phone in his office informing him to contact the City Personnel Department that day for an interview for the Assistant Personnel Director/EEO position.

When Mr. Gomez returned to the office after 4:30 o'clock P.M., he was advised of the message. He went back to his office for a while and had a conversation with Fran Onion after he emerged. He stated that he had attempted to call the Personnel Department but that no one answered. The next morning he called and was told his interview slot had been filled.

Mr. Joseph Kernan, Controller for the City of South Bend, testified that he reviewed the applications that were submitted for the position of Assistant Personnel Director/EEO Officer, interviewed some of the candidates for the position and ultimately made the decision on the successful candidate. When he interviewed Jon Oppenheim, he told him that he had others to interview.

The applicants were selected for interviews on the basis of their applications and the qualifications disclosed therein. It was the City's policy and practice, after interviewing the selected applicants, to contact the applicant's supervisor if the applicant was a city employee with respect to the applicant's job performance and to review the employee's evaluations made annually as a matter of city practice by the employee's supervisors. If the applicant was not a city employee, the applicant's reference, employer, and former employers would be contacted.

Joseph Nagy, John Oppenheim's Supervisor, filed his annual employee evaluation on Mr. Oppenheim in his employee record. That report revealed that Mr. Oppenheim was a very good employee. The City did not contact any of Mr. Oppenheim's references, including Michael Barnes. Jane Cleaver, a very credible witness, testified that she was the Personnel Director of the Michiana CETA Consortium in 1981 and was the person who handled all inquiries about CETA Consortium employees with respect to salary, benefits and job performance from prospective employers. She gave Ramiro Gomez a negative evaluation based on his CETA job record, which included an extended probation period and the second lowest evaluation for a CETA Consortium employee of approximately 150 that were evaluated.

After interviewing the applicants, Mr. Jon Oppenheim, a white male, was selected by Mr. Kernan for the position of Assistant Personnel Director/EEO Officer on the basis of his job skills, his job performance as a city employee and his ability to work well with people and grasp the task at hand. No party leaders were contacted with respect to the hiring decision, which was the normal practice and no one suggested Mr. Oppenheim should get the job for any political reasons. Although political affiliation is important in some city jobs, it was not in the position of Assistant Personnel Director/EEO Officer and played no part in the decision making process. Mr. Oppenheim was not active in politics nor did he possess any political power.

Mr. Kernan discussed the appointment of Mr. Oppenheim with the Mayor of South Bend and probably the Mayor's Administrative Assistant since the position had some managerial responsibilities. Such discussions centered around the employee's past job performance, the fact that he worked for the City, the job he had done while working for the City, whether he was capable of handling the position and whether he was compatible with those he would work for and with.

The City of South Bend issued a Policy and Standard Procedure memorandum with respect...

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