Robinson v. Lehman
| Decision Date | 29 August 1985 |
| Docket Number | No. 84-1638,84-1638 |
| Citation | 771 F.2d 772 |
| Parties | 39 Fair Empl.Prac.Cas. 559, 38 Empl. Prac. Dec. P 35,562 ROBINSON, C. Bernard, Individually and On Behalf of Other Individuals Similarly Situated v. LEHMAN, John J., Individually, His Predecessors and Successors And As Secretary of the Navy and Ruehlin, John, Commodore, Individually, His Predecessors and Successors and as United States Navy Commanding Officer Aviation Supply Office. Appeal of C. Bernard ROBINSON. |
| Court | U.S. Court of Appeals — Third Circuit |
Francis X. Nolan (argued), Harry C.J. Himes, Jennifer R. Miller, Himes, Sanders & Nolan, P.C., Philadelphia, Pa., for appellant.
Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Asst. U.S. Atty., Chief of Appeals, Alexander Ewing, Jr., Chief, Civ. Div., Joseph M. Masiuk, Asst. U.S. Atty., Philadelphia, Pa., Joseph G. Lynch, Associate Chief Trial Atty., Susan D. Warshaw (argued), Trial Atty., Litigation Office, Dept. of Navy, Washington, D.C., for appellees.
Before HIGGINBOTHAM and BECKER Circuit Judges, and LACEY, District Judge. *
Plaintiff-appellant Collien Bernard Robinson, a civilian employee of the United States Navy, initiated this racial discrimination action on behalf of himself and other individuals similarly situated, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982), against defendant-appellees the Secretary of the United States Navy and the Commanding Officer of the United States Navy's Aviation Supply Office, Philadelphia, Pennsylvania. 1
Robinson submitted a motion for class certification on June 16, 1983, which was denied on August 30, 1983 for failure to establish compliance with Fed.R.Civ.P. 23, with leave to file a supplemental motion. A supplemental motion for class certification was filed on September 4, 1983. This motion was denied on January 6, 1984. 2 Prior to trial, Robinson petitioned for issuance of a temporary restraining order seeking, inter alia, to enjoin the Navy's counsel from contacting, interviewing, or communicating with employees of the Aviation Supply Office, particularly black employees, with reference to any aspect of the action. Robinson alleged that the Navy was attempting to coerce and intimidate the witnesses to prevent them from testifying. After oral argument, the district court denied this motion also.
A non-jury trial on the individual action commenced on July 2, 1984, after which the district court found that the evidence did not support Robinson's assertion that his non-selection for promotion had been the result of prohibited discrimination. The district court determined that although under Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), Robinson had presented a prima facie case of discrimination, the Navy had articulated legitimate reasons for its failure to promote him and had rebutted Robinson's prima facie case. The district court concluded that Robinson failed to "carry his burden of proof under Burdine of showing that [the] articulated reason was pretextual and that 'but for' the plaintiff's race he would have been promoted." Appendix ("App.") at 1417.
This appeal followed entry of final judgment in favor of the defendants. For the following reasons, we affirm.
Collien Bernard Robinson ("Robinson") is a black male citizen of the United States and a resident of the Commonwealth of Pennsylvania. He earned his Bachelor of Science degree in accounting from Temple University in 1958. On April 25, 1960 he started civilian employment in the entry level Grade Schedule Five ("GS-5") position of Supply Commodity Management Assistant with the United States Navy's Aviation Supply Office ("ASO") located in Philadelphia. Robinson received a series of competitive and non-competitive promotions in rapid succession from GS-5 to GS-7, to GS-9, to GS-11, and then to the GS-12 Supply Systems Analyst position in the Systems Development Division, Systems Development Branch I of ASO, in December of 1968. App. at 32.
Because of his outstanding abilities and potential, the ASO awarded Robinson a fellowship to the master's program in management offered at Temple University. App. at 13, 33. By 1970, Robinson had completed all course work required to obtain a Masters' Degree, and returned as a full-time employee at ASO. App. at 14, 34. Upon his return, Robinson acquired the additional duty of serving as an Equal Employment Opportunity Counselor ("EEO Counselor") App. at 34-5. 3 After Robinson fulfilled his duties and obligations as an EEO counselor at ASO, his career advancement came to an abrupt halt. App. at 14. In January of 1977, Robinson applied under Merit Promotion Vacancy Announcement ("VA") No. 76-53T for a competitive merit promotion to the GS-13 Supervisory Supply Systems Analyst position. This announcement was advertised to fill two vacancies open at that time. 4 Robinson submitted an application to fill one of these positions and was not selected for either one. 5 The gravamen of his complaint is that the failure of the ASO to promote him to one of the two supervisory positions he applied for was a result of disparate treatment on account of racial bias violative of Title VII. He challenges the Merit Promotion Plan itself as drafted and as applied.
The ASO Merit Promotion Plan is the local Navy program for filling positions by promotion in accordance with the Civil Service Commission's Federal Merit Promotion Program. App. at 1892-1901. The selection procedure in effect in 1977 and 1978, JOINTINST 12340.2E, involved a two-tiered screening process. The first step in filling the position advertised in VA 76-53T was to determine which of the applicants possessed the basic qualifications for the position. An employee was required to submit a written application (on a form prescribed by ASO) to the personnel office, describing the applicant's experience and answering job-related questions, including information on awards and training or education. At the close of the announced application period, a personnel management specialist would review the applications in order to determine whether the applicants possessed the basic qualifications for the position. The applications were evaluated against the standard set forth in the Office of Personnel Management's Qualifications Standard. 6 The applications meeting these minimum requirements would then be rated and ranked. Robinson was rated "highly qualified" and thus eligible for the position under this criteria. App. at 130-52. 7
Second, if the applicant met the minimum qualifications, as did Robinson, the applicant's supervisor was required to provide a written appraisal evaluating the employee for the particular vacancy. In the event a supervisor had supervised the employee for less than six months, the supervisor was required to collaborate with the employee's previous supervisor in filling out the appraisal. Therefore, Captain Gerald Abbott ("Abbott"), Robinson's supervisor at the time of his job application, and Ms. Kathleen Addis (now Fitzgerald) ("Addis"), Robinson's former supervisor, jointly prepared his appraisal.
The form utilized for supervisory appraisals by the ASO included 7 job elements (technical competence, quality and timeliness, communications abilities, cooperation, stability, supervision and administration, and subject matter skills and knowledge) and 25 subelements. App. at 1502-03. Applicants could receive a maximum of 4.0 points for each of the 7 job elements under which their merit promotion applications were evaluated (4 points for "outstanding" rating, 3 for "above average", 2 for "average", and 1 for "marginal") App. at 1426, 1439. Because each job element was usually worth a total of not more than 4 points, applicants could receive a maximum of 28.0 points. "Highly qualified" applicants were those candidates whose total raw point value was at least 21.0.
On his appraisal, Robinson obtained a total point value of 27.1, receiving 15 grades of "outstanding" and 10 grades of "above average" in the various subelements. He received scores of less than 4.0 in Job Element I, Technical Competence; Job Element III, Communications Abilities; Job Element VI, Supervision and Administration; and Job Element VII, Subject Matter Skills and Knowledge. App. at 1498-99. 8
Robinson's application and appraisal were then forwarded to a rating schedule panel to be scored under pre-determined written criteria with all other applicants for the job. 9 Based on his application and Abbott's and Addis's joint appraisal, Robinson received a score of 99.0 out of a possible 100 points. App. at 1498-99, 1441. Under this Merit Promotion Plan, supervisory appraisals alone could account for as much as 100 of the 100 points which an applicant could have been awarded in the rating process. App. at 1799.
This score of 99.0 placed Robinson 17th on a list of 24 applicants. The scores ranged from 100 to 89.8 and 10 people received scores of 100. After rating and ranking the candidates, the rating schedule panel prepared a list of applicants in order of their scores on the promotion certificate. The certificate, once issued, was then forwarded to a selection advisory panel to recommend employees for promotions. Eleven applicants were placed on the so- called Certificate of Eligibles. 10 Robinson's score, however, was not high enough to place him on the Certificate of Eligibles, and only those on the Certificate of Eligibles would be considered for a promotion as a Supervisory Supply Systems Analyst. Two white males, Leonard Burk and Michael Kopcho, were selected from the list of the eleven to fill the two vacancies. App. at 40-41. Had Robinson gotten a score of 100 he would, by virtue of his other qualifications, have been at the top of the list of eligibles. App. at 1880.
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