Huntley v. Department of Health, Educ. and Welfare, 76-1810

• Citation: 550 F.2d 290
• Decision Date: 08 April 1977
• Docket Number: No. 76-1810,76-1810
• Parties: 16 Fair Empl.Prac.Cas. 125, 13 Empl. Prac. Dec. P 11,613 Robert HUNTLEY, Plaintiff-Appellant, v. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, Joseph A. Califano, Jr., Secretary, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 290

550 F.2d 290

16 Fair Empl.Prac.Cas. 125,

13 Empl. Prac. Dec. P 11,613

Robert HUNTLEY, Plaintiff-Appellant, v. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, Joseph A.

Califano, Jr., Secretary, et al., Defendants-Appellees.

No. 76-1810.

United States Court of Appeals, Fifth Circuit.

April 8, 1977.

Bernette J. Johnson, Anthony W. Skidmore, Okla Jones, II, New Orleans, La., for plaintiff-appellant.

Gerald J. Gallinghouse, U. S. Atty., Leonard P. Avery, Asst. U. S. Atty., New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before TUTTLE, CLARK and RONEY, Circuit Judges.

TUTTLE, Circuit Judge:

This is an appeal by Robert Huntley, a black employee of the Department of Health, Education and Welfare, from a summary judgment entered by the trial court denying him his petition for back pay allegedly due him because of a finding by the Secretary that the denial of his promotion by his supervisors was racially motivated.

Without objection, the parties presented the issue to the trial court on the administrative record, not seeking a trial de novo. The Government does not contest the standard of review of the administrative action announced by the trial court:

"A federal employee complaining of ineffective administrative relief for discrimination in his employment is entitled to have the court conduct an independent review of the administrative record submitted by the Department, and the court must make its own decision based upon all relevant evidence." Citing Robinson v. Warner, 8 E.P.D. P 9452 (D.D.C.1974); Day v. Weinberger, 8 E.P.D. P 9771 (D.D.C.1974). ¹

Because the district court did not itself hear testimony, the weight which this Court must accord to its findings of fact under the "clearly erroneous" rule is somewhat diminished. See Smith v. United States, 502 F.2d 512 (5th Cir. 1974). Without objection from the government, the lower court adopted the decision of HEW that Huntley had been discriminated against. The court concluded, however, that it was not clear from the record that Huntley would have been promoted but for the discrimination. Assuming, as we do for the purpose of this discussion that Huntley had the burden of proving that "but for" the illegal selection of Bitterwolf, the white candidate, he clearly would have been chosen for the job, we conclude that Huntley met this burden and we therefore reverse the judgment of the trial court dismissing the complaint.

Briefly stated, the facts are that in December, 1969, Huntley applied for the position of warehouse foreman which had become vacant. Alvin Bitterwolf, a white male, also applied for the same position. Three others applied for it, including Wellmond Arcenaux, Jr., a black, and two other white men.

On the rating sheet which the appointing authority stated she relied upon in making the appointment of Bitterwolf, the white man, he made a composite score of 90. This was compiled by a basic rating, which was given uniformly to all five applicants, of 70, and an "advancement" rating of 5, a "relatedness" rating of 8, and an "ability" rating of 7. Huntley's composite score was 84, with a basic rating of 70, "advancement" rating of 3, "relatedness" rating of 6 and "ability" rating of 5. Arcenaux, the other black applicant, had a composite score of 81, the basic rating of 70, "advancement" of 2, "relatedness" of 7, "ability" of 3.

In order to achieve the ratings which totalled 90, Bitterwolf had furnished information which had been false in two important respects. The first of these was as follows:

"On September 3, 1968, I was detailed to the warehouse as Acting Chief Warehouse Leader Foreman during Mr. Monson's illness. I was in this position until his return on February 20, 1969. During this time I was in complete charge of all functions of the warehouse, i. e., receiving, issuing, warehousing stock items, as well as receiving, checking and issuing innumerable items for direct delivery to all sections and departments of the hospital. I was detailed in this position for approximately 5 1/2 months, being relieved of this duty upon Mr. Monson's return on February 20, 1969. Just recently I was detailed to the warehouse again as Acting Chief Warehouse leader foreman during Mr. Monson's recent illness and his subsequent retirement on October 31, 1969, and I am presently still performing in this position." (Emphasis in original.)

When subsequently required to make a statement under oath, he said that he "helped out in the warehouse for four or five months, maybe less, but only when somebody was out. I also went to help when they needed it but this was not continuous." When asked as to which statement was correct, he stated: "I was never the Acting Chief. I was just sent off and on to help but never acted as the Chief until I got the foreman's job."

The second matter relates to his statement on his Form 171 used to evaluate him for the promotion that he was a Chief Petty Officer in the Navy. In fact, he was not a Chief Petty Officer; he had a rating of an E-5, Second Class Petty Officer. When questioned about the discrepancy, he said: "I was not a Chief Petty Officer. I was an E-5, Second Class Petty Officer but acted as a Senior Petty Officer on duty. Question: Since there is a difference between Chief Petty Officer and Second Class Petty Officer, why did you have the Chief designation on your supplemental form. Answer I don't know. Somebody helped me to prepare it. Question: Who helped you to prepare it? Answer: I don't know. I can't remember but I did have help."

Mr. Harvey, the alleged discriminating official who approved the selection, said that the personnel staff had sent to him for interview and selection, Bitterwolf, whose score of 90 gave him a "highly qualified" rating, Mr. Wellmond Arcenaux, Jr., whose score of 81 gave him a "fully qualified" rating and Mr. Robert Huntley, whose score of 84 gave him a rating of "fully qualified." Apparently all scores of 90 or above gave a "highly qualified" and a score between 80 and 90 gave a "fully qualified" rating. Mr. Harvey said: "I selected the number one man listed, not because of race, but because of his high qualifications. Mr. Huntley at the time of selection or thereafter did not discuss his feelings about the selection with me."

The administrative examiner conducting the equal opportunity hearing concluded that:

"By his own admission (and that of Mr. A. H. Harvey) Mr. Bitterwolf was not detailed officially or otherwise, to the warehouse as Acting Chief, but was only intermittently assigned to 'help out.' Therefore the experience as Acting Chief enumerated in the supplemental 171, submitted for the warehouse foreman position is misstated and should not be credited as qualifying experience.

In addition, Mr. Bitterwolf's prior experience is questionable as qualifying for the foreman position. The only other allusion to experience that might be stretched in order to be applicable to warehouse duties is the following reference to his supplemental 171:

'For a period of approximately 16 years during my various tours of duty in the Navy, I was assigned as a Dental Technician which involved maintenance of the supply room for all medical, dental, drugs, and general supplies for all units in the area where I would be assigned. As Chief Petty Officer, Dental Supply, I was in charge of anywhere from three to twenty men at all times, being responsible for their top performance in the various tasks and jobs that would be assigned them.'

Mr. Bitterwolf's 1968 application for re-employment at the New Orleans Hospital (he had been a nursing assistant and a guard) gave his exact title of position in the service as Dental Technician, his classification as E-5 and the description of work as follows:

'Dental Technician assisted doctor at chair clerical work supply room. First Aid and nursing-supervisor-minor repairs to equipment X-Ray instructor in dental hygiene and nursing autocalve (sic) of surgical instruments oral prophylaxis and fluoride treatment. Clerical work 50% supervisor 50%.'

Neither of the above statements appears to qualify Mr. Bitterwolf for the foreman's position as announced. The qualification requirements stipulated on the announcement No. 510 for the Warehouse Lead Foreman position are as follows:

'Applicants must have had at least 2 years of progressive experience in the performance, of supervision of the performance of duties in one or more normal warehousing activities such as receiving, storing, inventorying, issuing or shipping of various types of equipment, supplies, and parts. Included in or in addition to this experience, applicants must have had at least 6 months of experience performing at the warehouseman level of skills and knowledge with evidence of supervisory qualifications, preferably represented by actual supervising experience.'

The evidence clearly indicates that Mr. Bitterwolf was the beneficiary of a preselection." (Emphasis in original).

Further support for the conclusion of the examiner that Bitterwolf was given improper credit for Acting Chief of the warehouse is contained in a statement made by Arcenaux, one of the former applicants for the position. He gave his statement for the administrative proceeding as follows:

"After Mr. Monson retired, Mr. Theard was on sick leave for a long time and Mr. Huntley ran the warehouse. He still runs the warehouse. Mr. Bitterwolf does not know how to do the job. He doesn't know how to fix a complete order-he doesn't help with inventory. When the other men were there (Monson and Theard) we all did it. Now only Huntley, Davis, and I do it."

Further, Mr. Theard who had retired as Assistant Foreman of the warehouse stated:

"When Huntley first came, he was a laborer but Mr. Monson (the foreman) was out a lot and I taught Huntley all the jobs in the warehouse. He did Monson's job and mine when we were out. He also did a lot of stock clerk...