Goodman v. Schlesinger
| Decision Date | 02 October 1978 |
| Docket Number | No. 76-2117,76-2117 |
| Parties | 18 Fair Empl.Prac.Cas. 191, 18 Empl. Prac. Dec. P 8659 Harold A. GOODMAN, Woodrow Debrew, and Joyce K. Martin, Appellants, v. James R. SCHLESINGER, Secretary of Defense, John Warner, Secretary of the Navy, and Rear Admiral E. T. Westfall, Commanding Officer, Norfolk Naval Shipyard, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Randall G. Johnson, Richmond, Va. (Henry L. Marsh, III, Hill, Tucker & Marsh, Richmond, Va., on brief), for appellants.
Peter B. Loewenberg, Atty., Dept. of the Navy, Washington, D. C. (James Oast, Asst. U. S. Atty., Norfolk, Va., on brief), for appellees.
Before BUTZNER, RUSSELL and WIDENER, Circuit Judges.
Harold A. Goodman, Woodrow Debrew, and Joyce K. Martin brought this Title VII employment discrimination action 1 against the Secretary of Defense, the Secretary of the Navy, and the Commanding Officer of the Norfolk Naval Shipyard, Portsmouth, Virginia. The named plaintiffs brought suit in their own behalf and for a class alleged to consist of "all black persons and all females who have sought employment and who are employed or might in the future be employed by the Norfolk Naval Shipyard . . . who have been denied, or in the future will be denied equal employment opportunities by defendants on the grounds of their race, color and/or sex." Plaintiffs alleged in the complaint thirteen different types of employment discrimination, 2 thus in their view mounting an across the board attack on Shipyard employment policies.
All three named plaintiffs are black. In support of his individual claim, Goodman asserted that he "has been a victim of some or all of the discriminatory acts" set out above. The facts alleged by him, however, charge only one of the thirteen varieties of discrimination, the unlawful denial of a promotion. Debrew's allegations do not include the broad statement included in Goodman's complaint quoted above, but, in fact, his claim reaches three of the alleged practices: discrimination by his immediate supervisor in work assignments, in work appraisals, and the unlawful denial of a promotion. 3 Mrs. Martin alleges only that she was denied promotion on account of her sex; her statement of the claim, like Debrew's, contains no broad assertion of general wrong. The three named plaintiffs thus present claims of unlawful discrimination in promotion, work assignment, and supervisory evaluations, three of the alleged categories.
Prior to trial, the district court, on the Shipyard's motion, denied class certification on the ground that the plaintiffs had failed to establish any of the four requirements of FRCP 23(a). The case on the merits was tried to the district court sitting without a jury, which found against the three named plaintiffs, and dismissed the action. Plaintiffs appeal from both the adverse judgment and the denial of class certification. For the reasons stated below, we affirm the judgment of the district court dismissing the individual claims, vacate the denial of class certification, and remand for further proceedings.
We first consider the claims of the named plaintiffs, Harold A. Goodman, Woodrow K. Debrew, and Joyce K. Martin.
Goodman was hired by the Shipyard in 1957 as an apprentice boilermaker. In 1966, he was promoted to associate supervisor inspector, a position comparable to the foreman level, and, in 1971, was appointed a foreman boilermaker. The availability of a merit promotion to the position of boilermaker general foreman, which is the subject of Goodman's claim, was announced on January 4, 1974. On March 12, 1974, the Shipyard Industrial Relations office published a list of six persons who were certified as highly qualified for the promotion to boilermaker general foreman. "Highly qualified" means "among the better qualified applicants for promotion." Among those on the list were Goodman and John L. Thompson, a white male.
Harold A. Staneski, the Shipyard selecting official, appointed Ervin T. Cartwright, the shop superintendent for the available position, to review the applications and other material pertinent to the six candidates. Cartwright recommended Thompson for the promotion, Staneski concurred, but "certain irregularities in the selection process" plaintiffs agree are "not involved in the suit" voided Thompson's promotion. Subsequent to this initial, abortive, appointment, four of the six persons on the highly qualified list requested that their names be withdrawn, and they were removed from the list, leaving only Goodman and Thompson.
This time, Staneski appointed a recommending panel of three members, Cartwright and two others: Jack H. Lewelyn, who was the superintendent from a shop other than the one in which the promotion was available, and James R. Talley, a general foreman, who also was from another shop, and who, in accordance with regulations, was black. Cartwright developed criteria to be used by the panel in considering the candidates, and the panel members agreed to use these criteria. The panel rated the candidates, and unanimously recommended Thompson for the promotion. Staneski concurred in the recommendation and promoted Thompson.
Subsequent to Thompson's second promotion to the position, however, the Secretary of the Navy determined that due to violations of various regulations the promotion was improper, and by letter dated May 13, 1975 directed the Shipyard Commander to cancel the promotion and give priority consideration to Goodman for the resulting vacancy. On June 12, 1975, however, the Shipyard Commander requested the Secretary to reconsider his order, and stated that he would not implement the Secretary's earlier direction until further instruction was received. By letter dated July 25, 1975 the Secretary ordered that the Shipyard without delay implement the directives of the letter of May 13th, and on September 28, 1975 Goodman was promoted to the position of general foreman.
As related above, Thompson's initial selection was set aside for procedural irregularities which are admitted to have nothing to do with this case. Goodman had complained about Thompson's initial promotion. After Thompson's second promotion, this time on the recommendation of the panel, Goodman again complained. The Secretary of the Navy set aside Thompson's second promotion, again for reasons unrelated to racial discrimination. It seems that Thompson's name would not have been placed on the "highly qualified" list unless he had previous supervisory experience for the period of time that his record showed that he had, and which he in fact had. But another regulation provided that only 120 days in a calendar year could be spent in a temporary promotion, and Thompson had served in excess of that permitted by the regulation. In addition, Thompson had received a work appraisal for his duty on temporary promotion, and yet another regulation provided that a work appraisal properly could be given only for performance in a non-temporary position. Thompson had also received credit for his service in the permanent position while awaiting administrative determination of the correctness of the promotion. Thus, for these reasons, the Secretary of the Navy determined that Thompson's name should not have been on the highly qualified list, leaving only Goodman's, and there being no other applicant, the Secretary directed the Shipyard Commander to promote Goodman without delay.
Thompson's first promotion was set aside by the Shipyard Commander for reasons unrelated to race, and his second promotion was set aside by the Secretary of the Navy for reasons unrelated to race. Although Goodman complained about racial discrimination on both occasions, the Shipyard Commander specifically found there was no racial discrimination in connection with Goodman's failure to receive the position, and, following an examiner's report that there was no racial discrimination relating to the second promotion, the Secretary of the Navy found that he was unable to find racial discrimination in connection with Goodman's failure to get the promotion. The Secretary, nevertheless, offered Goodman the opportunity to participate in an administrative investigation on the basis of race, but apparently Goodman chose to file this suit instead. Goodman's theory is that the reason regulations were violated in promoting Thompson was because of Goodman's race.
The district court, however, found that the determining reason for Goodman's failure to win the promotion was the presence of "an abnormal situation" in Goodman's department, described as the nuclear submarine boiler department, and its belief that the record of Goodman's previous demonstration of lack of aggressiveness did not show that he had the desired qualities of being able to reorganize the department. The court further found that the same promotion decision would have resulted even if Goodman were white, and thus concluded that "there was no discrimination in Mr Goodman's case." For us to overturn the district court's determinations that race did not affect the promotion proceedings and that the selection of Thompson hinged upon the appraisal that Goodman lacked the requisite aggressiveness, we must be persuaded these findings were clearly erroneous. FRCP 52(a).
Goodman argues that the racial animus involved in denying him the initial promotion is demonstrated by the following evidence: Goodman never had received a temporary promotion to general foreman, while Thompson had, and one of the ways by which the Shipyard traditionally discriminated against black employees was in their exclusion from temporary promotions. In addition, Thompson not only served in his temporary duty for a period in excess of that permitted by Shipyard regulation, but he also received a work appraisal for his temporary duty when by regulation the appraisal properly could be given only for performance in a...
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