Lee v. Bolger, 76 Civ. 668 (VLB).

• Decision Date: 29 June 1978
• Docket Number: No. 76 Civ. 668 (VLB).,76 Civ. 668 (VLB).
• Citation: 454 F. Supp. 226
• Parties: George Lawrence LEE, Plaintiff, v. William F. BOLGER, Individually and as Regional Postmaster General for the Northeast Region of the Postal Service, New York, Defendant.
• Court: U.S. District Court — Southern District of New York

454 F. Supp. 226

George Lawrence LEE, Plaintiff, v. William F. BOLGER, Individually and as Regional Postmaster General for the Northeast Region of the Postal Service, New York, Defendant.

No. 76 Civ. 668 (VLB).

United States District Court, S. D. New York.

June 29, 1978.

George Lawrence Lee, plaintiff pro se.

Robert B. Fishe, Jr., U.S. Atty., S.D.N.Y., New York City, Robert B. Fiske, Jr., U.S. Atty. by Michael H. Dolinger, Asst. U.S. Atty., New York City, for defendant.

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

Plaintiff, a black male, was the Director, Office of Equal Employment Compliance, Northeast Region, United States Postal Service from 1971 until April 1974. The position of General Manager, Equal Employment Opportunity ("EEO") Division, Northeast Region ("General Manager") was newly created in 1973. The selection process to fill the above vacancy was a seven-month effort spanning 1973 and 1974, which resulted in the selection of one Albert J. Washington, a black male.

After the appointment of Mr. Washington to General Manager plaintiff filed an administrative complaint, alleging that the failure to promote plaintiff to the newly created position was a deliberate act of racial and sexual discrimination. A hearing was held before a Complaints Examiner, who issued findings and a recommended decision that plaintiff had failed to establish his allegation of discrimination. The United States Postal Service concurred in the findings and recommended decision, which were affirmed by the Civil Service Commission's Appeal Review Board. Plaintiff then filed this action.

Plaintiff's action is for judicial review of agency action, and for declaratory and injunctive relief pursuant to 5 U.S.C. §§ 702, 704 and 706; 28 U.S.C. §§ 2201 and 2202; 39 U.S.C. § 409; 42 U.S.C. §§ 1981 and 2000e-16(a) and (c).¹ Plaintiff also complains that he was denied due process under the fifth amendment to the United States Constitution, having been deprived of certain rights, privileges and immunities by unlawful agency action. Plaintiff seeks to set aside the agency action denying him promotion to a position within the United States Postal Service and requests that his appointment and promotion to the above position be compelled.

Jurisdiction is based upon a) 28 U.S.C. §§ 1343(3) and 1343(4),² b) 42 U.S.C. § 2000e-5(f)(3),³ c) 39 U.S.C. § 409(a)⁴ and d) 5 U.S.C. § 702.⁵

The parties have presented this matter for determination on stipulated facts in lieu of a trial.⁶ For the reasons hereafter stated, I dismiss the complaint.

The Selection Process

After the creation of the post of General Manager, the Assistant Regional Postmaster General announced on October 17, 1973 that Mrs. Florence Robinson, a white female, was to be appointed General Manager, effective after Christmas. Mrs. Robinson never assumed the duties of General Manager because it was determined 1) that incorrect procedures had been followed in filling the position, and 2) that Mrs. Robinson did not meet the criteria specified for the position. See Stipulation of Facts at 3 (May 12, 1977).

Written notice of the availability of the position of General Manager was then circulated under the Postal Executive Salary ("PES") Promotion System, dated November 8, 1973.⁷ The circular failed to generate the submission of any nomination for the General Manager post. See Stipulation of Facts at 3 (May 12, 1977). As in the case of Mrs. Robinson's abortive appointment, this method of filling the vacancy was determined to be irreconcilable with procedures set forth in applicable U.S. Postal Service Instructions.

Thereafter, on January 10, 1974, the vacancy for the position of General Manager was announced in the Regional Bulletin. On January 24, 1974 plaintiff applied for the position.

Following an initial screening process conducted by Mr. Pat Ciotti, Labor Relations Specialist, the names of six individuals were submitted to the Promotion Advisory Board ("the Board") for consideration as General Manager. See Stipulation of Facts at 4 (May 12, 1977). The plaintiff's name, and that of Mr. Washington, were included among the six. All six persons were male, and all but two were black. Each of the six candidates was interviewed by the Board, which then recommended three of them for appointment as General Manager — Mr. Washington and two others named Adams and Cureton. The plaintiff was not recommended. Mr. Washington, ranked as most qualified by the Board, was appointed to the position, assuming his duties on April 1, 1974.

The documents submitted to the Board with respect to Mr. Washington and Mr. Adams had contained only one supervisory recommendation each, instead of two as provided for in the applicable U.S. Postal Service Instructions. The Postal Service's explanation for this deviation from prescribed procedure was that their immediate supervisor, one Mr. McKay, was himself a candidate for the position of General Manager, and would have had a conflict of interest. See Stipulation of Facts at 5 (May 12, 1977).

The Post-Appointment Reprisals

On April 4, 1974, three days after Mr. Washington assumed his duties as General Manager, plaintiff received a so-called Letter of Direction.⁸ On April 24, 1974, plaintiff filed an EEO complaint concerning the issuance of this letter and by agency decision dated September 20, 1974, the issuance of the Letter of Direction was decreed an act of reprisal and ordered expunged.

On April 22, 1974, a Reduction in Force notice was issued to the plaintiff in which he was offered a position as EEO Appeals Coordinator, which was at a lower level than the position he then held. The Reduction in Force notice was subsequently withdrawn.

On August 1, 1974 plaintiff received an Advance Notice of Removal, which directed that he go on indefinite administrative leave. That Notice was withdrawn on August 22, 1974 after plaintiff filed an EEO complaint concerning it. Plaintiff was ordered reinstated to duty by agency decision dated November 6, 1974 which characterized the Advance Notice of Removal as a reprisal.

On September 27, 1974, plaintiff received a Notice of Proposed Removal, similar in content to the Advance Notice of Removal issued on August 1, 1974.

On October 22, 1974, plaintiff received a Notice of Decision terminating his employment effective November 4, 1974. However, following the above-mentioned agency decision of November 6 which dealt with the August 1 Notice, plaintiff was restored to active duty retroactive to November 5, 1974.

On November 5 and 21, 1974, plaintiff filed EEO complaints concerning, respectively, the September 27 Notice of Proposed Removal and the October 22, Notice of Decision. A hearing on these complaints took place on February 3, 1977. The Complaints Examiner, based upon the Postal Service's concession, found the notices to be reprisals. The Postal Service concurred with the conclusion of the Complaints Examiner by agency decision dated April 14, 1977, and ordered the Notice of Proposed Removal and the Notice of Decision expunged from plaintiff's records.

I. The Title VII Claim

Plaintiff complains that his non-promotion to the position of General Manager was a deliberate and intentional act of racial and sexual discrimination.

42 U.S.C. § 2000e-16(a) provides in relevant part:

All personnel actions affecting employees . . . in the United States Postal Service . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin.

With respect to unlawful employment practices, 42 U.S.C. § 2000e-2(a) provides:

It shall be an unlawful employment practice for an employer —

(1) to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . ..

Plaintiff asserts that he has proved his prima facie case of racial discrimination; that the burden has shifted to the employer to come forth with legitimate nondiscriminating reasons for plaintiff's non-promotion; and that the defendant's explanations are unsatisfactory.

The proper standard for prima facie proof required from the complainant in cases of failure to promote is found in Pettit v. United States, 488 F.2d 1026, 1033, 203 Ct.Cl. 207 (1973):⁹

A prima facie case of failure to promote because of racial discrimination is made by showing: (i) that plaintiff belongs to a racial minority, (ii) that he was qualified for promotion under defendant's on-going competitive promotion system, (iii) that he was not promoted, and (iv) the supervisory level employees having responsibility to exercise judgment under the promotion system betrayed in other matters a predisposition towards discrimination against members of the involved minority.

I find that plaintiff has not met his prima facie burden under the Title VII claim.

Of the six individuals considered for the position of General Manager, of which plaintiff was one, all were male and four were black. The Promotion Advisory Board then recommended three of these individuals, all black. Mr. Washington was ranked most qualified, and thereafter was appointed General Manager. This does not strike me as a predisposition to discriminate against members of the black race or male gender.¹⁰

The facts that Mrs. Robinson, a white female, was first selected for the position and was later denied the appointment does not aid plaintiff's case. The Postal Service handled the matter effectively and no injury accrued to plaintiff or others similarly situated. Also, the record does not reflect any discriminatory intent on the part of the supervisory officials in selecting Mrs. Robinson.¹¹ Likewise, the improper use of the PES Promotion System, which on its face does not discriminate racially or sexually, did not cause harm to the plaintiff. No nominations resulted from the use of this...