Holmes v. Bevilacqua, 84-1916

Citation794 F.2d 142
Decision Date17 June 1986
Docket NumberNo. 84-1916,84-1916
Parties41 Fair Empl.Prac.Cas. 43, 41 Empl. Prac. Dec. P 36,463, 55 USLW 2023, 4 Fed.R.Serv.3d 1316 Raymond F. HOLMES, Appellant, v. Joseph J. BEVILACQUA, Individually and in his official capacity as Commissioner, Department of Mental Health and Mental Retardation of the Commonwealth of Virginia and the Department of Mental Health and Mental Retardation, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Robert P. Geary (Geary & Davenport, Richmond, Va., on brief), for appellant.

Henry M. Massie, Jr. (Sands, Anderson, Marks & Miller, Richmond, Va., on brief), for appellee Joseph J. Bevilacqua.

Mary Yancey Spencer, Asst. Atty. Gen., Richmond, Va., on brief), for appellee Va. Dept. of Mental Health and Mental Retardation.

Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, CHAPMAN and WILKINSON, Circuit Judges.

CHAPMAN, Circuit Judge:

Plaintiff, a black male, sued Joseph J. Bevilacqua, individually and in his capacity as Commissioner, Department of Mental Health and Mental Retardation of the Commonwealth of Virginia, and the Department of Mental Health and Mental Retardation (MH/MR or the Department) alleging racial discrimination under 42 U.S.C. Sec. 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Plaintiff alleged discrimination in the defendants' failure to promote him to the position of Deputy Commissioner of MH/MR. At the conclusion of the plaintiff's case, the district court granted defendants' motion to dismiss under Federal Rule of Civil Procedure 41(b). 1 The plaintiff appeals, contending that the district court erred in finding that he failed to prove a prima facie case of discrimination and in granting the Rule 41(b) motion. We find that the district court was correct in granting the Rule 41(b) motion, and we affirm.

I

Joseph J. Bevilacqua became Commissioner of MH/MR in September 1981. At that time the Department was managed by seven assistant commissioners, a deputy commissioner, and the commissioner. The plaintiff was employed in 1981 as an assistant commissioner and was one of the seven assistant commissioners serving at the time Bevilacqua was employed as commissioner. In January 1983, a vacancy occurred in the office of deputy commissioner, and Bevilacqua appointed Howard Cullum, a white male, as temporary, part-time acting deputy commissioner pending recruitment of a permanent replacement. Prior to his appointment as acting deputy commissioner, Howard M. Cullum had been executive director of the Virginia Beach Community Services Board, and the Board had entered into a written agreement with MH/MR temporarily assigning Cullum to MH/MR as acting deputy commissioner for a period of six months. The Virginia Beach Community Service Board is known as a Chapter 10 Board because it was established pursuant to Chapter 10 of Title 37.1 of the Code of Virginia (1950), as amended, Sec. 37.1-194 et seq. Such boards are independent of state government, appointed by the localities, provide their own staffing, and receive funding locally, as well as from the state and the federal governments.

Applicable personnel rules required that the position of deputy commissioner be advertised and contain a description of the job and qualifications for applicants. The advertisement contained the following:

Description and Qualifications.

To provide executive direction to a staff of six assistant commissioners and to serve as the primary operational authority for the agency. Seeking candidates with the following attributes:

--Strong executive management background highlighted by major organizational accomplishments.

--Expert decisionmaking, leadership, organizational, and analytical skills.

--Expertise in policy development and implementation combined with effective interpersonal and communication skills.

--Prefer familiarity with Virginia Mental Health/Mental Retardation Services network and its integration with other human service systems.

The applications for the position of deputy commissioner were received by Donna Shumate, employment supervisor, who worked for James L. Bozarth, Employee Relations Director of MH/MR. Donna Shumate screened the applicants based on the position announcement and the criteria developed for the position as deputy commissioner. In doing so she made an assessment as to whether the applicants met the qualifications as to executive management background and experience with the Department of Mental Health and Mental Retardation Community Service Board Network. Some applicants were eliminated in this screening. A second screening done by Shumate considered executive management, policy development and implementation, and communication skills; this resulted in reducing the number of applicants to five finalists. Of these five, based upon Shumate's screening criteria, plaintiff was tied for third and was ahead of Howard Cullum, who was subsequently selected as deputy commissioner.

At the time of his application to become deputy commissioner, Raymond F. Holmes was a thirty-nine year old black male who had received a Bachelor's Degree in Sociology in 1969, a Master's Degree in Special Education in 1970, and a Doctorate in Special Education in 1977. Before becoming assistant commissioner, Holmes was Southern Regional Director for Mental Retardation Services of Nevada, a region with 600,000 people, and he had experience in directing a mental health institution and in teaching and training teachers of handicapped children. He had published two articles in the Journal of Mental Retardation.

Howard Cullum did not have a doctoral degree, had never published anything in a scholarly journal, and had never served as a director of a mental retardation facility. His experience had been as Executive Director of the Virginia Beach Community Services Board.

In announcing the appointment of Cullum as Acting Deputy Commissioner in January 1983, Bevilacqua issued a written memorandum to the Commissioner's staff, with copies to central office directors, facility directors, community service boards, executive directors and assistant attorneys general, which stated in part:

As you know, I appointed Howard Cullum as Acting Deputy Commissioner to assist in managing Departmental activities. Efforts to provide improved Central Office support to our State facilities and Community Service Boards is [sic] my highest priority. This is especially important as we move to a coordinated state-local system of care for the mentally disabled and substance abusers.

In announcing Howard's appointment late in December, I indicated that he would be responsible for managing our Central Office staff. Effective immediately, Howard will be responsible for management of day-to-day operations of Central Office staff. All Assistant Commissioners will report to him. I am assigning Howard responsibility for coordination of staff activities, for assignment of staff work, for setting of deadlines and for ensuring that staff work coming to me is complete.

On June 7, 1983, Bevilacqua announced his decision and offered the position of deputy commissioner to Howard Cullum. On the same date he wrote the other four finalists advising them of his choice. The letter to plaintiff from Bevilacqua stated:

Thank you very much for applying for the position of Deputy Commissioner for the Department of Mental Health and Mental Retardation. Your understanding of my style and operation requirements is obviously well understood. I appreciate your straight forward responses to my questions because they reflect your clear understanding of the mission of the Department.

It is my judgement [sic] that we need in the Central Office, the skill and experience that comes from municipal government and local community experience. For this reason, I am selecting Howard Cullum for the position of Deputy Commissioner. It was a difficult choice and I appreciate the support you have provided to the Department.

Plaintiff testified that in a meeting between plaintiff and Bevilacqua subsequent to the promotion decision, he expressed concern that the questions asked of him at the interview did not touch upon his municipal government experience or his community experience. He testified that Bevilacqua stated that he had made a "subjective" decision in filling the position. In applying for the position of deputy commissioner, the plaintiff had submitted a nine-page "Vita" along with an additional two-page application which outlined in great detail his experience and responsibilities in all the positions he had previously held.

At trial the plaintiff's case consisted of his testimony, the testimony of Mrs. Shumate, and an exhibit book containing approximately eighteen documents. Mrs. Shumate testified as to the procedure used in giving notice of the vacancy in the position of deputy commissioner and the advertising for applicants. She also explained the system used in screening the applicants to arrive at the five finalists.

The plaintiff testified as to his education and explained his experience and responsibilities in various positions he had held in the mental health and mental retardation field. He acknowledged that he realized that the competition for the position of deputy commissioner was going to be very strong and that the other four finalists had considerable experience at the local level in community service and working with community service boards. He admitted that all finalists were very well qualified, and that "I knew that the job announcement indicated that it preferred to hire someone that was knowledgeable about the Community Service Board Network System, yes." Plaintiff also testified that he did not feel that the questions asked to him at the interview were any different from those asked to the other finalists.

The exhibits contained the "Interview Evaluation Worksheet" of each finalist and...

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