De Volld v. Bailar

• Decision Date: 03 March 1978
• Docket Number: No. 76-2295,76-2295
• Citation: 568 F.2d 1162
• Parties: 16 Fair Empl.Prac.Cas. 999, 16 Empl. Prac. Dec. P 8150 Gloria Martinez De VOLLD, Plaintiff-Appellant, v. Benjamin F. BAILAR, U. S. Postmaster General, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1162

568 F.2d 1162

16 Fair Empl.Prac.Cas. 999, 16 Empl. Prac.

Dec. P 8150

Gloria Martinez De VOLLD, Plaintiff-Appellant, v. Benjamin F. BAILAR, U. S. Postmaster General, et al Defendants-Appellees.

No. 76-2295.

United States Court of Appeals Fifth Circuit.

March 3, 1978.

James M. Heidelberg, San Antonio, Tex., Vilma S. Martinez, Joel Contreras, Mexican-American Legal Defense & Educational Fund, San Francisco, Cal., for plaintiff-appellant.

John E. Clark, U. S. Atty., Edward M. Johnson, Larry R. Patton, Asst. U. S. Attys., San Antonio, Tex., for defendants-appellees.

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

Before INGRAHAM, GEE and TJOFLAT, Circuit Judges.

GEE, Circuit Judge:

The present case stems from charges of employment discrimination in the United States Postal Inspection Service. In 1972 the plaintiff, Gloria Martinez De Volld, was one of two Mexican-American clerks at the GS-6 level in the San Antonio domicile office of the Postal Inspection Service. When a third clerk, an Anglo-American, was promoted to a higher position at the GS-7 level, plaintiff lodged an administrative complaint charging that she had not been considered for the position because of her national origin. Several administrative appeals later, the United States Civil Service Commission Board of Appeals and Review found that Ms. De Volld and the other Mexican-American clerk, Marie J. Trevino, had indeed suffered discrimination based on national origin. As a remedy the board ordered that both be promoted to the position in question or to a position of like grade, status and pay in the Postal Inspection Service or in any office of the Postal Service in the San Antonio area. Shortly thereafter the two Mexican-American clerks filed separate suits for enforcement of this decision.

Meanwhile, however, the United States Postal Service requested that the Civil Service Commission reopen the case. The Postal Service did not contest the finding of discrimination but argued that the remedy granted promotion of both Mexican-American clerks was unauthorized by law, since there had been no finding that either of the two Mexican-Americans would have received the promotion even in the absence of discrimination. The Postal Service argued that such a finding was required for a promotion remedy under the Civil Service's own regulations, 5 C.F.R. 713.271(b).

The district court stayed proceedings pending the Civil Service Commission's reconsideration of its remedy; it also consolidated the plaintiff's suit with that of Ms. Trevino. Upon reconsideration the Civil Service Commission determined that Ms. Trevino, the other Mexican-American clerk, was the best qualified of all three candidates for the disputed position; it thus concluded that she would have received the promotion but for discrimination and awarded her a promotion with back pay as authorized by 5 C.F.R. 713.271(b). As for the plaintiff, Ms. De Volld, the Civil Service Commission in effect determined that the discrimination against her had not deprived her of the position, since she was not the best qualified candidate. The commission did order, however, that she be given priority consideration for the next vacancy for which she was qualified. The Civil Service regulations also authorize this remedy.

Upon being advised by the parties of this disposition by the Civil Service Commission, the district court dismissed the case as moot. From this dismissal plaintiff De Volld appeals.

De Volld's appeal is based in large part on the Supreme Court's decision in Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). In that case the Court held that a federal employee has the same right as a private employee to de novo judicial review in any employment discrimination suit under Title VII, 42 U.S.C. § 2000e, et seq. (Supp. IV 1970). To establish that Title VII entitles the plaintiff to be made whole by the remedy of promotion, she must show not only discrimination a point that the Postal Service concedes but also that the discrimination prevented her from attaining her "rightful place"; that is, she must show that discrimination was a "but for" cause of her nonpromotion. ¹ Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Weber v. Kaiser Aluminum & Chemical Corp., 563 F.2d 216 (5th Cir. 1977); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974). The plaintiff argues that the Civil Service Commission's determination that the other Mexican-American clerk was the more qualified candidate was a determination that discrimination was not a "but for" cause of the plaintiff's nonpromotion. She disputes this administrative determination, arguing that she was in fact the more qualified candidate and that discrimination thus was the cause of her nonpromotion. Moreover, she argues that Chandler required the district court to give de novo consideration to this, as to all other elements of her Title VII claim. She urges that the district court failed to apply this Chandler requirement, since, she says, in dismissing her case as moot it unquestioningly accepted the administrative determination of the Civil Service Commission.

This argument will not bear analysis. It must be kept in mind that only one person could be promoted to the position in question. Both Mexican-American clerks were concededly treated discriminatorily in that both were passed over because of their national origin. But the blunt fact remains that only one of the two if either could receive the promotion. When the Civil Service Commission determined that the deserving candidate was Trevino, the other Mexican-American clerk, it became indisputable that whatever discrimination the plaintiff had suffered because of her national origin, that discrimination no longer kept her from the promotion. Put another way, whatever motives the Commission may have had in choosing between two people of the same ethnic origin, discrimination cannot have been among them. We may...