Lozowski v. Mineta

• Decision Date: 14 June 2002
• Docket Number: No. 01-5010.,01-5010.
• Parties: Christine A. LOZOWSKI, Appellee v. Norman Y. MINETA, Secretary of Transportation, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

292 F.3d 840 Christine A. LOZOWSKI, Appellee
v.
Norman Y. MINETA, Secretary of Transportation, Appellant. No. 01-5010. United States Court of Appeals, District of Columbia Circuit. Argued January 10, 2002. Decided June 14, 2002. Rehearing Denied July 16, 2002.

Page 841

COPYRIGHT MATERIAL OMITTED

Page 842

Appeal from the United States District Court for the District of Columbia (No. 98cv00922)

Fred E. Haynes, Assistant U.S. Attorney, argued the cause for appellant. With him on the briefs were Roscoe C. Howard, Jr., U.S. Attorney, R. Craig Lawrence, Assistant U.S. Attorney, and Dale C. Andrews, Deputy Assistant General Counsel, U.S. Department of Transportation.

Eugene R. Fidell argued the cause and filed the brief for appellee.

Before: GINSBURG, Chief Judge, and RANDOLPH and TATEL, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge:

An officer of the Coast Guard claims that the service treated her unjustly and discriminated against her based upon her gender when it assigned her to a ship in Key West, Florida. The Secretary of Transportation, to whom the officer applied for a correction of her military record, disagreed. The district court found

Page 843

the decision of the Secretary to be arbitrary and capricious, and the Secretary appealed. Finding the Secretary's decision reasonable and supported by substantial evidence, we reverse the judgment of the district court.

I. Background

In early 1995 Christine Lozowski, then a Chief Petty Officer stationed in Washington, D.C., applied and was selected to be promoted to Chief Warrant Officer (CWO). She was not immediately assigned to a CWO position, however. Instead she was placed on the warrant officer selection list, from which individuals were promoted sequentially as positions came open. In late summer 1995, the Coast Guard sought to fill two CWO vacancies that would arise in early 1996. The first vacancy was aboard the Seneca, a cutter based out of Boston. For this slot, the Coast Guard preferred a "Finance and Supply" CWO with a "storekeeper background." The second vacancy was in Ketchikan, Alaska. Lozowski, who had a storekeeper background, was second on the warrant officer selection list at the time the assignments were to be made. She preferred to be assigned to Coast Guard headquarters in D.C. or to Yorktown or Portsmouth, Virginia, whereas her least desired locations were Alaska and California. The first person on the selection list was Mark Cornejo, who was serving in Alaska (his most desired service area) and had a food service background. The situation can be summarized as follows:

-------------------------------------------------------------------------------------
                 Available CWO Openings
                ----------------------------------------------------------------------------------------------------
                Cornejo: first on list, food service background, The Seneca: starting Feb. 1, 1996, in
                prefers Alaska; presently in Boston, storekeeper background preferred.
                Alaska.
                ----------------------------------------------------------------------------------------------------
                Lozowski: second on list, storekeeper Ketchikan: starting April 1, 1996, in Alaska.
                background, prefers D.C. or VA, last
                choice Alaska or CA; presently in
                D.C.
                ----------------------------------------------------------------------------------------------------
                

The assignment officer in charge of filling these openings was CWO Gray. At first Gray wanted to assign Lozowski to the Seneca and Cornejo to Ketchikan where he would for several months be "double-billeted," that is, would overlap with the officer he was replacing. The arrangement would keep Cornejo in Alaska, prevent Lozowski from having to go to Alaska — in accord with the wishes of each — and assign a CWO with a storekeeper background to the Seneca. Gray soon found out, however, that the Seneca did not have berthing space for a woman. Gray knew that CWO Rich, a male CWO with a storekeeper background assigned to the Thetis out of Key West, wanted to transfer to New England to be near his family and was willing to pay his own moving expenses. Gray called the Executive Officer of the Thetis and learned that the ship had berthing space for a woman. (There is also evidence that Gray thought the Thetis "needed" a woman officer.) The information relevant at this point can be summarized as follows:

---------------------------------------------------------------------------------------------------
                 Available CWO Openings
                ---------------------------------------------------------------------------------------------------
                Cornejo: first on list, a man, food service The Seneca: starting Feb. 1, 1996, in
                background, prefers Alaska; presently Boston, storekeeper background preferred,
                in Alaska. no berthing for a woman.
                ----------------------------------------------------------------------------------------------------
                Lozowski: second on list, a woman, storekeeper Ketchikan: starting April 1, 1996, in Alaska.
                background, prefers D.C. or
                

Page 844

VA, last choice Alaska or CA; presently in
                D.C.
                ----------------------------------------------------------------------------------------------------
                Rich: a man, storekeeper background, The Thetis: in Key West, berthing for a
                wants to be in New England; presently woman available.
                on the Thetis in Key West.

...