Lujan v. Walters
| Decision Date | 02 March 1987 |
| Docket Number | No. 85-1147,85-1147 |
| Citation | 813 F.2d 1051 |
| Parties | 43 Fair Empl.Prac.Cas. 181, 42 Empl. Prac. Dec. P 36,860 Frank LUJAN, et al., Plaintiffs-Appellants, v. Harry N. WALTERS, Administrator of the Veterans Administration, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Joseph F. Henderson, Staff Counsel (Mark D. Roth, General Counsel, with him on the brief), American Federation of Government Employees, AFL-CIO, for plaintiffs-appellants.
Kathleen A. Miller, Sp. Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Jennifer A. Salisbury, Asst. U.S. Atty., with her on the brief), for defendant-appellee.
Before HOLLOWAY, Chief Judge, and BARRETT and LOGAN, Circuit Judges.
This is an appeal from a judgment in favor of the defendant, Harry N. Walters, Administrator of the Veterans Administration (VA), following a three day trial to the court of two consolidated cases involving alleged employment discrimination. Plaintiffs-appellants, Frank Lujan, Ramon Palacio, Montgomery Watts, J.W. Gober, Victor Smith and Jerry Zalman alleged, in the one action, that the VA had violated Sec. 15 of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 633a, in promoting Freddie Martinez, then age twenty-seven, to the position of Warehouseman Foreman in September, 1979. ADEA prohibits discrimination based on age in all personnel actions affecting employees or applicants for employment in units of the Federal Government involving those who are at least forty years of age. 29 U.S.C. Sec. 633a(a). The plaintiffs-appellants were ages forty-seven through fifty-four at the date of the promotion. Plaintiff-appellant, Jerry Zalman, in a separate action, alleged reprisal by the VA in the form of a lowered performance evaluation following his charge of VA discrimination in the aforesaid promotion.
The district court rendered findings of fact and conclusions of law and entered judgment on November 26, 1984. The court found that the selection of Freddie Martinez was made for legitimate, non-discriminatory reasons and that the claim of reprisal lodged by Jerry Zalman was not established.
A recitation of facts necessary for our decision follows. The six plaintiffs-appellants who applied for the position of Warehouseman Foreman, WS-4, at the VA Medical Center, Albuquerque, New Mexico, had considerably more warehousing and supervisory warehousing experience than did the selectee, Freddie Martinez. The selection process included a form which each applicant completed entitled Supplemental Experience Statement for Inservice Placement, designed to identify related work experience and skills acquired. At the time of the applications, Mr. Robert Matson, then age sixty-four, served as Chief of the VA Supply Service. He made the ultimate selection from the top five rated applicants. Mr. John Walters, then age fifty-four, served as Assistant Chief of Supply. Both Matson and Walters were well acquainted with the plaintiffs and the selectee, Freddie Martinez, in their working capacities.
The scores awarded the applicants by their respective supervisors were considered, together with the supplemental form above, by a rating panel consisting of Mr. Walters and Mr. Frank Cervantes, then Chief of Personal Property Management, Supply Service. Mr. Cervantes died prior to trial. The rating panel was assisted by Ms. Kathleen Catanach, Staffing Assistant of the Personnel Service. Under a formula, the two scores were totaled and the top five applicants were referred to the selecting official, Mr. Matson.
The supplemental application-form posed a number of questions under four elements, which included: Element 1, Ability to Do the Work of the Position Without More Than Normal Supervision; Element 75B, Ability to Interpret and Process Supply Documents; Element 25 E, Technical Knowledge of Warehousing Procedures and Element 86, Safety and Dexterity. Each element was rated on a scale of 0 to 4 points. The panel used the VA rating guide in evaluating the answers. The rating guide governing Element 86 reads as follows:
ELEMENT 86. SAFETY AND DEXTERITY. This element is defined as the
--------------------
ability to work in warehousing activities, avoiding injury to
self and others by following safety rules and regulations. In
determining proper rating for this element consider
a. Type and frequency of exposure to hazardous working conditions
b. Knowledge of safety rules and regulations
c. Fast work record.
POINT VALUE
-----------
A. Applicants who have maintained a safe work record
while working in positions which involve frequent
and/or prolonged exposure to hazardous working
conditions should be credited at this level.
Examples of such conditions include working near
moving materials and material handling equipment,
danger of loads or equipment overturning, climbing
on ladders, falling boxes or equipment, opening
boxes and equipment items where cuts and bruises
could be sustained. A safe work record of at least
the past five years without lost time accidents
would be required for credit at this level .................... 4
B. Applicants who have maintained a safe work record
while working in positions which involve no more
than normal industrial hazards. Examples would
be strains from loading and unloading materials
and equipment; exposure to preservative oils in
handling material, etc. No lost time within the
past five years due to accident ............................... 3
C. Applicants who have maintained a safe work record
while working in positions relatively free of
potential hazards due to nature of work. Must
maintain a safe work record over a period of five
years or during last period of employment to be
credited at this level ........................................ 2
D. Applicants whose work record over the past five
years or during last period of employment
evidences no lost time, but shows frequent minor
accidents or a major accident ................................. 1
(R., Vol. II, Defendant's Exh. J.)
The score accorded Mr. Martinez by Mr. Walters and Mr. Cervantes is the focal issue in this age discrimination case. Question No. 1 under Element 86, was: During the past five years have you had an accident while on duty that resulted in a loss of time from your job? Mr. Martinez wrote in explanation:
(R., Vol. II, Exh. I.)
Thus, it was established, by Mr. Martinez's response, that he had lost some time by virtue of an on-the-job accident. The panel, however, gave Mr. Martinez a rating of 4.0 on Element 86. While the panel took steps to keep the applications anonymous, as did Ms. Catanach, the trial court found that Mr. Walters was still able to identify Mr. Martinez from the information provided. Although the object was for the panel to evaluate on a "blind" basis, Mr. Walters stated that because of his knowledge and acquaintance with personnel in the warehouse over the years, he knew "to a degree" who the applicant was by virtue anonymous application. (R., Transcript Vol. III, pp. 410-16.)
Appellants contend that the clear, explicit language in the aforesaid Element 86 rating guide prohibits the allocation of a score of 3 or 4 if the applicant reveals, as did Mr. Martinez, that he lost work time due to an on-duty accident. Notwithstanding, the panel did award Mr. Martinez the top score of 4.0 for Element 86. Appellants state that "the significance of this error is simply that it alone allowed the young and inexperienced Martinez to even compete with the senior veteran warehouseman." (Brief of Appellant, p. 15.) It is uncontroverted that had the panel allocated a score less than 3.5 to Mr. Martinez on Element 86, he would not have accumulated a sufficient total raw score to have been among the top five candidates to make the final Promotion Certificate.
Mr. Walters was thoroughly examined and cross-examined with regard to the Element 86 rating given to Mr. Martinez. He stated that he and Mr. Cervantes did not interpret the last sentence of either A or B under Element 86 to exclude a panel from awarding a 4.0 or a 3.0 rating because it contradicts the first sentence of each. (R., Transcript Vol. III, p. 418.) The first sentence of A reads "Applicants who have maintained a safe work record while working in positions which involve frequent and/or prolonged exposure to hazardous working conditions should be credited at this (4.0) level ..." and, "Applicants who have maintained a safe work record while working in positions which involve no more than normal industrial hazards." (Point 3.0.) (R. Vol. II, Defendant's Exh. J.)
Mr. Walters testified that he could not recall exactly why Mr. Martinez received the 4.0 rating under Element 86. However, he did testify that given the same response, he would then (at trial) probably rate Mr. Martinez at 3.5. The record reflects the following:
Q. Okay. Well, reading the question, says during the past five years have you had an accident while on duty that resulted in a loss of time from your job. If so, explain. And assuming if she (Ms. Catanach) read you an answer: In all my years of working for the U.S. Government, I was...
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