Jones v. Middendorf

• Decision Date: 13 July 1978
• Docket Number: No. 76-302-C.,76-302-C.
• Citation: 454 F. Supp. 1276
• Parties: Robert L. JONES, Plaintiff, v. J. William MIDDENDORF, II, Secretary of the Navy, Defendant.
• Court: U.S. District Court — Eastern District of Oklahoma

454 F. Supp. 1276

Robert L. JONES, Plaintiff, v. J. William MIDDENDORF, II, Secretary of the Navy, Defendant.

No. 76-302-C.

United States District Court, E. D. Oklahoma.

July 13, 1978.

Roger O. Housley, McAlester, Okl., for plaintiff.

Betty Outhier Williams, Asst. U. S. Atty., Muskogee, Okl., for defendant.

MEMORANDUM OPINION

MORRIS, Chief Judge.

Plaintiff brings this action under title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The parties agree that plaintiff has exhausted his administrative remedies and that this court has jurisdiction under 42 U.S.C. § 2000e-16(c).

Plaintiff claims that defendant discriminated against him in his employment on the basis of race in promoting another applicant instead of plaintiff to fill the position of supervisory computer operator at the Naval Ammunition Depot in McAlester, Oklahoma. Plaintiff alleges that he was the most qualified applicant for the vacant position and that the other applicant was promoted for the reason that he is black and plaintiff is caucasian. Plaintiff contends that even if the record should show that both applicants were determined to be equally qualified by the rating panel, plaintiff should nevertheless have been promoted if the merit promotion program and the rating schedule for the vacant position were followed, and plaintiff alleges that the commanding officer who made the selection failed to follow these and failed to follow standard procedure in the selection process in that he did not apply the provision for breaking ties in the ranking of applicants. Plaintiff further alleges that the only reason that the black male was selected was that he was of a minority race and because the commanding officer wished to achieve racial balance at the level above GS-7.

Defendant admits that the commanding officer made the selection of the black applicant over plaintiff and that such a selection is ordinarily made by the supervisor under authority delegated to the department heads. Defendant alleges that the commanding officer made the selection himself because the department head had made a discriminatory preselection of the plaintiff. Defendant claims that the black applicant was selected because he was best qualified or at least equally as qualified as plaintiff. Defendant contends that the tiebreaking rules only apply to the rating panel's certification of the three most qualified applicants for a particular position if more than three have applied for that position, and that the selection official has discretion to choose any one of the three applicants who have been certified as qualified for the position. The case was tried to the court sitting without a jury on April 4, 1978, in Muskogee, Oklahoma.

On July 23, 1974 vacancy announcement No. 22 was issued by the personnel office of the Navy Ammunition Depot in McAlester, Oklahoma, soliciting applications for the position of supervisory computer operator, GS-332-09, Plaintiff's Exhibit No. 1, as a result of request No. 72 of July 15, 1974. Defendant's Exhibit No. 1. The following three applicants were placed on the certificate of eligibles for promotion by the rating panel: Robert L. Jones, William O. Kirk and Pheotene A. Carney. Defendant's Exhibit No. 1, at 2. Plaintiff Jones and Kirk both received a numerical score of 100 and Carney received a score of 97. All three were listed as highly qualified for the GS-9 position. Carney is a female, Kirk is a black male, and plaintiff is a white male.

Robert Jones has been a supervisory computer technician, which is a GS-8 position, since 1968 at the military facility in McAlester, Oklahoma, which at the time the events occurred that are material to this action was the Naval Ammunition Depot, but has since become the Army Ammunition Depot. Thus, when Jones applied for the GS-9 position he had six years experience as a supervisory computer technician. From 1967 until 1968 he was a digital computer systems operator at the Naval Ammunition Depot. While working in that capacity his position was rated as GS-5 and later as GS-6. From 1960 until 1967 plaintiff was an EAM (electrical accounting machine) operator at the Naval Ammunition Depot. This was a GS-4 position. See Plaintiff's Exhibit No. 2.

Prior to 1960, plaintiff was employed at the Tinker Air Force Base in Oklahoma as a tabulating equipment operator supervisor from March 1959 until August 1960, and as a tabulating equipment operator from January 1958 until March 1959. From July 1957 until November 1957 Jones worked as tabulating equipment operator in McAlester which, except for the change in title, was the same position as that of an EAM operator, which plaintiff subsequently held between 1960 and 1967. When the GS-9 position opened up in 1974, plaintiff had seventeen years experience in computer work and computer related work, fourteen of which had been at the McAlester facility. While EAM work is not the same as computer work it is generally related. An electric accounting machine (EAM) is a card operated device while computers which are now generally in use are strictly electronic, use magnetic tapes and discs, operate from memory and are more sophisticated. Not counting plaintiff's EAM work, he had seven years experience in computer work when he applied for the GS-9 position in 1974. At that time he had seven to eight years supervisory experience, namely, from 1968 until 1974 as supervisory computer technician, see Plaintiff's Exhibit No. 2, Attachment No. 1A, and from August 1967 until October 1968 as a supervisory digital computer operator. See Plaintiff's Exhibit No. 2, Attachment No. 1. He had approximately 800 to 900 classroom hours of technical training, Plaintiff's Exhibit No. 2, Attachment No. 4, and 310 hours of managerial training. The government gave him leaves of absence to take these courses. In his GS-8 position plaintiff mainly performed planning and organizing functions and not much hands-on work. Hands-on work was the exception, not the rule. However, plaintiff had fourteen months of hands-on experience with the Honeywell 200 series computer as a computer operator.

Plaintiff was given a sustained superior performance award by the commanding officer of the Naval Ammunition Depot in April of 1967. Plaintiff's Exhibit No. 2, Attachment No. 7. He also received the "wise old owl award" (2000 hours accumulated sick leave) in April, 1971. Plaintiff's Exhibit No. 2, Attachment No. 6. Plaintiff has been with the military since November, 1945. Federal employees with service of less than 3 years are entitled to 4 hours of sick leave for every 2 weeks. Persons who have been employed between 3 and 15 years are entitled to 6 hours per 2 weeks, and persons employed more than 15 years are entitled to 8 hours per 2 weeks. Frequency of sick leave taken is significant in that it not only may show the status of an employee's health, but it may be indicative as well of an employee's devotion to and interest in his position and of his reliability.

The position of supervisory computer operator, GS-332-09, became available when Robert Williams, who had previously held it, was promoted to a GS-10 position upon the retirement of Harold C. Cloer. The job description of the vacant GS-9 position called for 45 percent supervision, 35 percent managing the operation and 20 percent hands-on operation. Plaintiff's Exhibit No. 8. Thus, the position contemplated 80 percent supervision and management of operation and 20 percent hands-on operation. The position paid $12,167.00 per annum, as a GS-9, step 1 position. In 1974 plaintiff was ranked in his position as a GS-8, step 5. There was no guarantee that plaintiff would begin at step 5 of the GS-9 position if he were to receive the promotion. However, plaintiff would have received promotion money in any event; in other words he would have commenced at least at such a step at the higher grade as would have assured him of earning more upon promotion than he did as a GS-8, step 5.

William O. Kirk was a computer operator, GS-7, on the Honeywell 200 series computer at the Naval Ammunition Depot when he applied for the GS-9 position in 1974. Plaintiff's Exhibit No. 7. Kirk was at grade GS-7 for 3 years, and at GS-6 and GS-5 for one year each. From October 1965 until February 1966 Kirk was employed with General Electric Credit Corporation as a computer operator in Oklahoma City, and from October 1960 until May 1965 he was an EAM operator, GS-4, at the Tinker Air Force Base in Oklahoma. Kirk had supervisory experience during his four years of military service from 1954 to 1958 in the United States Air Force. See Plaintiff's Exhibit No. 7. In connection with his employment as a computer operator at the Naval Ammunition Depot Kirk had no supervisory experience other than that which is the normal duty of an operator, that is, training new employees coming into the shift. He did not have any managerial courses up until 1974 but did have computer courses prior to 1974. He had technical training by August 1974. Kirk took courses at the Eastern Oklahoma State College in Wilburton, Oklahoma, between 1966 and 1972. He testified that he received an associate degree in data processing in 1972, but he did not list such a degree in his application of July 30, 1974 for the GS-9 position. See Plaintiff's Exhibit 7.

Earl Dunn was the personnel officer at the Naval Ammunition Depot for twentyfive years. He retired in April, 1976. When a vacancy occurs the supervisor requests that the position be filled and that the certificate of eligibles issue. As a result of the supervisor's request a vacancy announcement is issued. See Plaintiff's Exhibit No. 1. A job description prepared by the supervisor of the vacant position is forwarded to the personnel office. After the applications are received in the personnel office they are reviewed by a personnel specialist for the purpose of eliminating those applicants who do not even remotely qualify for the position...