Vetter v. Frosch

• Decision Date: 25 July 1979
• Docket Number: No. 78-3807,78-3807
• Citation: 599 F.2d 630
• Parties: 20 Fair Empl.Prac.Cas. 900, 20 Empl. Prac. Dec. P 30,129 Curtis E. VETTER, Plaintiff-Appellant, v. Robert FROSCH et al., Defendants-Appellees. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 630

599 F.2d 630

20 Fair Empl.Prac.Cas. 900,

20 Empl. Prac. Dec. P 30,129

Curtis E. VETTER, Plaintiff-Appellant, v. Robert FROSCH et al., Defendants-Appellees.

No. 78-3807

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

July 25, 1979.

David T. Lopez, Houston, Tex., for plaintiff-appellant.

Arthur R. Amdur, Asst. U. S. Atty., Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, RONEY and TJOFLAT, Circuit Judges.

RONEY, Circuit Judge:

Plaintiff, Curtis E. Vetter, has been employed at the Johnson Space Center, National Aeronautics and Space Administration, Houston, Texas, since 1967. On July 6, 1973, he filed a formal complaint alleging that he had received a written reprimand and had not been repromoted in reprisal for having served as a representative in EEOC complaints filed by two female co-workers. The Civil Service Commission's decision of no discrimination was appealed to the Appeals Review Board. The Board affirmed the agency decision, and the plaintiff filed this complaint.

In an action for federal employment discrimination under § 717(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. § 2000e Et seq., the plaintiff is entitled to a trial De novo of his claim. Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). When the case was called for trial on February 10, 1978, the plaintiff's attorney, aware of plaintiff's right to a trial De novo, stated:

MR. LOPEZ: We have been reviewing with . . . counsel for the government that administrative record and discussing what each of us thought were the things that need to be supplemented. We are prepared to agree to submit the case on cross-motions for summary judgment based essentially on the administrative record.

Mr. Amdur (government counsel) has told me that he has perhaps two affidavits which he would like to supplement the record. We have no objections to that, provided we have an opportunity to answer by cross-affidavits.

And with that, I don't think we need to burden the court with testimony that will be basically repetitious. We have had an administrative hearing and it is of record.

THE COURT: What about Mr. Vetter's deposition, do you want the court to consider that as well?

MR. AMDUR: Your Honor, the court might need to consider it, if the court wants to.

MR. LOPEZ: It seems to me that if the government considers any portion to be considered, I think it should be offered into evidence at some point, not necessarily at this time, so we may have an opportunity, because we reserved objections, as is customary, so that we could make objections on any portions of it. I don't think we would have any problem with it.

THE COURT: This is what the court will do: I will read any portions of it to which reference is made in any of the motions.

MR. LOPEZ: That's fine, your Honor. And if there is any reference made, we can respond and point out materiality or weight. . . .

THE COURT: Well, that will be the order of the court.

The court subsequently entered findings of fact and conclusions of law, resolving the case against the plaintiff on the ground that the defendants had violated neither the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e Et seq., nor the Civil Rights Act of 1966, 42 U.S.C.A. § 1981. The court held that the reprimand "was not issued because of any motive of reprisal or retaliation on the part of the Defendants" and that the failure to repromote "was based on good cause, and the higher qualifications of competing candidates."

The initial problem on this appeal is the standard of review to be applied. The solution depends on whether we treat the district court's action as a grant of a summary judgment motion or a trial on a stipulated record.

If we regard the district court's decision as the granting of a motion for summary judgment, the inferences to be drawn from the evidentiary record " must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

Where there are cross-motions for a summary judgment, the losing party is not estopped by the mere filing of his motion for summary judgment from asserting that there are genuine issues of fact. Bricklayers Local 15 v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975). A party's motion for summary judgment may be based on a theory of law which renders immaterial certain issues of fact which might be material to the opposing party's theory of law. A plaintiff, having lost on his motion for a summary judgment, would be free to argue on review that there were issues of material fact which should have been resolved before deciding the case by summary judgment in favor of the defendant's theory of law.

In ruling on the cross-motions for summary judgment, the district court explained, "The basic facts are not in significant dispute. However, the Court has had to resolve some credibility questions in arriving at its conclusion." This indicates that issues of material fact existed which had to be resolved on a credibility basis in order to decide the case on the defendants' theory of law.

The rule, of course, is that summary judgment must be reversed if any "genuine issue as to any material fact" is found to have existed. Fed.R.Civ.P. 56(c); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962).

On the other hand, the case could be treated as a trial by the court on a stipulated record. All inferences would then be drawn in favor of the district court's decision which could be reversed on issues of fact only in the event that it was found clearly erroneous. Starsky v. Williams, 512 F.2d 109, 111 (9th Cir. 1975). We note that the appellant's burden of showing clear error in the district court's fact findings may be lightened somewhat where a record consists entirely of documentary or written evidence and the trial court could not have based findings on the credibility of witnesses giving oral testimony. Petition of Geisser, 554 F.2d 698, 705 (5th Cir. 1977), Quoting Sicula Oceanica, S.A. v. Wilmar Marine Engineering & Sales Corp., 413 F.2d 1332, 1333-34 (5th Cir. 1969).

It is not necessary, of course, for a court to have an oral hearing in order to resolve issues of material fact. Many cases are tried on depositions, counter-affidavits, and stipulated records, where the parties know there are issues of fact which must be resolved, but are content to have them resolved on the basis of the written, as opposed to oral, testimony and evidence.

Treating this case as a trial on a stipulated record clearly seems more consistent with the district court's actions. When the case was called for trial the plaintiff had the opportunity to present any evidence it wanted. The court noted in its memorandum, however, "(t)he parties appeared by counsel and announced that they wished to submit the case on the record which includes a lengthy Administrative Record, affidavits and Plaintiffs' deposition. The parties have filed cross-motions for summary judgment." The court then went on to state that it had to resolve credibility questions but that at the time the case was called "in their moving papers, the parties stipulated to this type of submission." It is significant then that the court made findings of fact and conclusions of law, not required, although often helpful on appeal, when acting on a motion for summary judgment. It entered judgment for the defendants without addressing the question of whether...