Petition for Writ of Certiorari — Torres v. Webb

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Supreme Court, U.S. 5

86-1447 E1LB D#

| . cfg 24 BR

JOSEPH F. SPANIOL, JR.

CLERK

NO.

Supreme Court of the United States

Term, 1987

Raymond R. Torres, Petitioner

vs.

Secretary of the Navy, Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

Raymond R. Torres

In Propria Persona

19918 Glencreek Circle

San Diego, CA 92131-2526

(619) 549-3445; 437-6160

Date: February 29, 1987

QUESTIONS PRESENTED

I. Is a Federal Employee required to

prove racial motivation in a Title VII

discrimination case relative to Section

704(a), 42 U.S.C. 2008e-3(a), in the

Petitioner's allegations of reprisal

(restraint and interference), and

retaliation, for having filed charges of

discrimination.

II. Does affirmative action (and federal

agency affirmative action plans AAPs)

require more than a passive response by

an agency when considering a group of

"best qualified" employees for promotion

(including minorities,, on a merit

‘itiitiedi hens certificate, where six

applicants have been rated substantially

equal in qualifications (i.e., "best

qualified" of all the “highly qualified"

applicants), and where the agency AAP

calls for a results-oriented change in

the personnel management statistics of

the agency.

III. Does Title VII legal analysis in the

adjudication of charges of discrimination

filed by Federal Employees negate the

lawful and regulatory protections and

rights of such government employees

unless discriminatory motivation under

Title VII is linked to the violation of

such legal and regulatory rights and

protections or should such a pattern of

regulatory infractions act as

circumstantial indicia in establishing a

prima facie case of discrimination.

iii

INDEX OF AUTHORITIES

Cases Page

EEOC v. Kallir, Phillips, Ross, Inc.

401 F « 2 Supp. 66. *enee#ee#enee#5$e##e#e#* #@® @ *e? fe ll

Firefighters Local Union No. 1784

v. Stotts, U.S. 104

SB. Gee 2E7T6 LiDTa) cccccccccccece 14,15

Fitzgerald v. Hampton, 467 F.2d

i Per rrerrrrr es*eeee#s? e*eerreeee##8 8# © @ 3

Garcia v. Lawn, 86 Daily Journal

D.A.R. 4099, Dec. 31, 1986

F.2d (2d Cir. 1983) .ccceee 12

Gunther v. County of Washing, 602

F.2d lt... 6 ee e666 6 6.660660666066 0 9,12

Hockstadt v. Worchester Foundation,

545 F.2d 222 (lst Cir. 1976).... ll

Holt v. Continental Group Inc.,

798 F.2d 87, 91 (2d Cir. 1983).. 13

In Re Charge to Grand Jury, Fed.

Rep. Vol. 62, at Maheeceese e*eeees#8es 25

Johnson v. Transportation-Agency,

Santa Clara County, California,

748 F.2d 1308 (9th Cir.

19B4).ccecce coccce ocee 0 l15,16,17,18,19,20

Local Number 93, International

Association of Firefighters AFL-

CIO C.L.C. v. City of Cleveland,

et al., 46 CCA S. Ct. Bull., P.

Ly? Pr er ee ee 15,17,20

Local 28 of the Sheet Metal Workers

International Association, et al.,

v. Equal Employment Opportunity

Commission, et al., 46 CCH S. Ct.

Bull., Pe B44ESleccccccccccceesselS, 18,19

Losure v. ICC, U.S. MSPB, Docket No.

Ck Fe ee ee eae a a a a ee Pe 3

Mead v. U.S. Fidelity & Guaranty

Co., 442 F. Supp. 114 (1977).... 10

Page v. Bolger, 645 F.2d 227 (4th

CS? » BGG Fc 0000066 66604680666600540, 50600

Pettway v. American Cast Iron Pipe

CO., 4l1l F.2d _., Pree ev rorrrre: t 8

Ritter v. Straus, 261 F.2d 767.... 3

Service v. Dulles, 354 U.S. 363... 23

Setser v. Novak Investment Co., 657

F.2d 962 (8th Cir.) (en banc),

cert. denied, 454 U.S. 19064, 1902

S. Ct. 615, 78 Le. Ed. 2d. 691

ERGOR 3 0 006600666 60006668 000466668 16

Sheet Metal Workers v. EEOC, 46

CCH, « Cte Bull PS zZ.245

Shipp v. Walker 13 FEP Cases 163,

166 U.S.D.C., DeCog 1DTSccccccce 25

Steelworkers v. Weber, 443 U.S.

193 C2 OTOP co cccevsececesevescl, 35,17,18

Vitarelli v. Seaton, 359 U.S.

535 ne fe ff © @ ee eeee#e#ee#ee#efe#efe#rnfee#e#nhHke#ne##e##e#e#ee#e#e#e# 23

EERREERER REE EEE

Statutes

28 U.S Ge a’: awrwvrrverr@errTrrrrT rT? ix

Executive Order l11478..ceecccesves z,i5

42 U.S.C. 2008e-3(a), Sec.

WGA adocccscvccoscsvocsahe 726431,12,13 734

Sec. 12, Veterans Preference Act

OF 194RMccccccececesesesseseseces x

Regulations

Federal Personnel Manual-FPM

351-39, SlID-Lecccccccccccccccces 4

Federal Personnel Manual-FPM 335.. 4

Federal Personnel Manual-FPM Supp.

752-1, Sec. Sl-3al(G).. ce ccneeves 3

Federal Personnel Manual-FPM-35l.. 3

29 CFR 1LG6lLI- Alle ccccccccccsccccces 23

29 CPR LOLI. 2AQeccccccccscsscsccces 23

29 CPR 16139. 26Gleccccccsccssesesece 23

29 CFR IGLICSISIACD) coc ccvsscssivcssessgaaear

Federal Personnel Manual-FPM

7T92=] c4OCZ) ccccacvescesscssséiceos 22

TABLE OF CONTENTS

Page

Questions Presented. ceeseeeeeeeces i

Index of AuthoritieS....ee-6-. ecccce ii

Opinions BelOw...ccceeeseeeeeeeees viii

ree ix

Statutory Provisions Involved..... x

Statement of the CaS@e.eeeeeeeees ee 1

Reasons for Granting the Writ .... 7

I. The Decision Below Leaves

Precedent in Support of the

Erroneous Principle that the

Act of Retaliation in Title

VII, Section7@4(a) Cases,

Requires a Racial Motivation

Other than the National

Origin of the Petitioner in

Having Filed a Discrimination

Complaint...cceeeees eecccces 7

II. The Ninth Circuit Court's

Affirmation of the Trial

Court's Decision on

Affirmative Action Ignores

its own Recent Finding with

Reference to the According of

Preferential Treatment to

Minorities and Women in

Affirmative Action Cases.... 14

vii

III. Clarification Is Required

Concerning Violations of

Employer Regulations in

Carrying Out Acts of Discri-

mination and Retaliation

Based Upon an Automatic

Retaliatory Response to

Employee Charges of

Discrimination Against the

Employer as Relevant Indicia

to a Circumstantial, Prima

Facie Case else such Employer

Violations if Carried Out

with Impunity in Title VII

Cases Cause a General State

of Illegality and Disorder in

the Governmental Body

POLICiCecccccccccccccscccecs 21

Appendix A

U.S. District Court, Southern

District of California, Findings

of Fact, Conclusions of Law and

Order Granting Motion to Dismiss

Pursuant to Rule 4l(b), Fed.R.

Civ.P., Filed November 16,

LGBSc cccccececceseeeecseeeseses A-1

Memorandum U.S. Court of Appeals

for the Ninth Circuit, Filed

November 24, 1986. ne ff feeenerteeeee* A-36

Judgment for Costs, U.S. District

Court, Southern District of

California, Filed January 25,

L9BG ec ccccccccccccccccccccececs A-38

Order, U.S. Court of Appeals for

the Ninth Circuit, Filed January

14, 1987 “ee ee eee eenee “eee eeenevnee A-43

viii

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

Raymond R. Torres, the Petitioner,

in propria persona, herein prays that a

Writ of Certiorari issue to review the

memorandum disposition of the Ninth

Circuit Court of Appeals in Raymond R.

Torres, Petitioner v. Secretary of Navy,

Appellee - Defendant, dated November 24,

1986; rehearing en banc denied.

OPINIONS BELOW

l. The Findings of Fact and Conclusions

of Law and Order Granting Motion To

Dismiss Pursuant to Rule 41 (b), Fed.

R-Civ.P. were filed and entered by the

Trial Court on November 16, 1984 and is

reprinted at pages 2A-35A of the Appendix

(hereinafter "“App").

2. A separate judgment for costs was

entered on January 308, 1985, by the

District Court and is reprinted at App.

A36-A37.

3. The memorandum disposition of the

U.S. Court of Appeals for the Ninth

Circuit, dated November 24, 1986, and is

reprinted at App. A38-A42.

4. The Order of the U.S. Court of

Appeals for the Ninth Circuit dated

January 14, 1987, and is reprinted at

App. A43.; rehearing En Banc denied.

JURISDICTION

The memorandum of the United States Court

of Appeals for the Ninth Circuit was

filed on November 24, 1986. The

jurisdiction of this Court is invoked

pursuant to Section 28 U.S.C. Section

1254.

STATUTORY PROVISIONS INVOLVED

Section 704 (a) of Title VII, 42 U.S.C.

2600e-3(a), as amended, provides in part:

"It shall be an unlawful

employment practice for an employer

to discriminate against any of his

employees...because (the employee)

has opposed any practice made an

unlawful employment practice by this

subchapter, or because he has made a

charge, testified, assisted, or

participated in any manner in an

investigation, proceeding, or

hearing under this subchapter."

Section 42 U.S.C. 2008e-5(g) empowers a

district court to order race-conscious

relief that may benefit individuals who

are not identified victims of unlawful

discrimination Sheet Metal Workers ve

EEOC, 46 CCH, S.CT. Bull. P., B4442.

Section 12 Veterans Preference Act

of 1944: states Reduction in Force and

Reduction in Rank of Veteran requires

"due process."

Executive Order 11478 Sec. 4 states:

"The Civil Service Commission shall

provide for the prompt, fair, and

‘SS @@BBBEBeEEEEE &

impartial consideration of all complaints

of discrimination...and shall encourage

the resolution of employee problems on an

informal basis."

STATEMENT OF THE CASE

Petitioner filed a timely appeal of the

Trial Court's Finding of Fact and

Judgment (App. A2) to his original

complaint filed April 19, 1978,

consolidated with a later complaint on

April 14, 1982. The two actions were

brought to trial in July - August 1984.

The consolidated complaint contained

allegations of discrimination,

retaliation, and reprisal (restraint and

interference) with reference to the

following causes of action:

a. Nonselection for a position as

Civilian Personnel Director, (GS-13)

(hereinafter "CPD") Rota, Spain.

b. Removal via reduction-in-force

(RIF) procedure from a Civilian Personnel

Officer (GS-12) (hereinafter "CPO")

position at Miramar Naval Air Station

(NAS), San Diego, CA, partly because of

the Petitioner's failure to accede to the

Commanding Officer's pressure to

discharge another Hispanic employee who

was responsible for the command equal

employment opportunity (hereinafter

"EEO") program owing to the Commanding

Officer's disgruntlement with EEO.

Cc. Withdrawal of tentative

selection for a Civilian Personnel

Officer (GS-12) position in Iwakuni,

Marine Corps Air Station (MCAS), Japan.

d. Discharge from employment as a

Position Classification Specialist (GS-

12) from the Civilian Personnel

Department, Naval Air Station (NAS),

North Island, San Diego, CA.

The Trial Court granted Defendant's

Motion for Summary Judgment enunciating

conclusions of fact and law

(App. A2). ;

The factual allegations of the

Petitioner's consolidated complaint

establish that the Respondent engaged in

improper personnel actions which removed

Petitioner from lawfully tenured

positions without the benefit of "due

process" required in accordance with

established regulations (Navy and Federal

Personnel Manual) while engaging in overt

and covert discriminatory treatment of

the Petitioner. For example:

a. The Respondent, admittedly made

allegations of inefficiency and miscon-

duct against the Petitioner while

removing him from a Civilian Personnel

Officer position (NAS Miramar), in the

knowledge that FPM Supp. 752-1, Sec. Si-

3a(6) prohibited the use of RIF (FPM 351)

procedures in such removal. (Fitzgerald

v. Hampton, 467 F.2d 755; Losure v. ICC,

U.S. MSPB, Docket No. 35199608; Ritter v-

Strauss; 261 F.2d 767.

b. The Respondent canceled the

Petitioner's selection for the Iwakuni,

Japan, position based upon the circum-—

stances surrounding his removal from the

NAS Miramar position without benefit of

having followed FPM Part 752 procedures.

As a consequence, Petitioner could not

defend against timely, specific and

detailed charges. In being removed from

the NAS Miramar position (via RIF), the

Petitioner was not granted RIF rights to

another comparable position. Far example,

in Iwakuni, as is required mane ees

following.

FPM 351-39, Subchapter 19-1 states:

An agency does not wait for an

employee's separation before

entering him on the list but enters

him as soon as it knows it cannot

retain him in his competitive area.

FPM 335:

When an employee or former employee

has a rightful claim toa position

change, reemployment, or restora-

tion, the appointing officer is

responsible for determining that

those rights have been observed

before adopting other means of

filling a competitive position."

Cc. The Petitioner was then

discharged from employment for having

(Sees 2 see

pursued his complaints of discrimination,

and in alleging reprisal activity

(restraint and interference) against

Respondent in the processing of the

Petitioner's complaints. Fabricated

charges were lodged against Petitioner in

order to effect his discharge which were

not found to be credible by a full

evidentiary administrative hearing

conducted by the MSPB (San Francisco) and

in a full secondary review by the MSPB

(Washington D.C.). Some of the charges

contained in Respondents proposed letter

of removal of November 2, 1979, were

directly related to the Petitioners'

previous charges of reprisal (i.e., 29

CFR 1613. 262(b)). Each and every charge

and specification lodged against the

Petitioner was reversed. The official

proposing the discharge of Petitioner

testified in the MSPB hearing that he

was, in part, motivated by the fact that

the Petitioner, et al, had filed a

",.Sspate of complaints of discrimination

and reprisal." (Opening Brief for

Appellant at 17).

In granting summary judgment to

Respondent, the Trial Court authorized

court costs based, in part, on the fact

that the Petitioner had gone so far as to

name the Secretary of the Navy (SECNAV)

as an alleged Discriminating Official

(ADO). The SECNAV had been named by the

Petitioner because the selection of the

Navy's civilian personnel directors was

controlled by the Office of the Secretary

of the Navy. The Trial Court feared

that the mitigation of costs might cause

a "...tidal wave of similar suits by

other people who want to take a shot at

the government..." The effect of this

Trial Court opinion conditioned its

decision in the matter of costs, and by

extension explained the bent of mind of

EERE REE RR EEEEES.

the Trial Court during the trial

affecting its decision for summary

judgment.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW LEAVES PRECEDENT

IN SUPPORT OF THE ERRONEOUS PRINCIPLE

THAT THE ACT OF RETALIATION IN TITLE VII,

SECTION 704(a) CASES, REQUIRES A RACIAL

MOTIVATION OTHER THAN THE NATIONAL ORIGIN

OF THE PETITIONER IN HAVING FILED A

DISCRIMINATION COMPLAINT.

The facts of this case do not

comport with the findings of the Trial

Court (App. A2). Section 704(a)

unequivocally prohibits discrimination

against a specific type of person

regardless of race. That is:

(1) because he has opposed any

practice made an unlawful employment

practice by this title (the

‘opposition’ clause); or

(2) because he has made a charge,

testified, assisted, or participated

in any manner in an investigation,

proceeding, or hearing under this

title (the ‘participation’ clause).

and

The law is relatively clear with

respect to the participation clause,

which provides ‘exceptionally broad

protection'

Co., 411 F.2d 998,1106 n. 18, 1 Fed

752,757.

See Employment Discrimination Law, Schlei

D.C., page 417 which states, in part, as

follows:

In order to establish a violation of

Section 704(a), be it the opposition

Or participation clause, the

plaintiff must establish, first, the

basis, which is to say that there

was statutorily protected

participation or oppositions second

the issue, an adverse employment

actton, such as discharge or other

forms of discrimination; and,

finally, a causal connection between

the participation/opposition (basis)

and the adverse employment action.

Inasinuch as the Trial Court granted

ipeeeeegeaggeeg as

summary judgment for the Defendant it did

not fully delve into the pretextual

aspects of the retaliation issue and thus

was not able to respond to the broader

purpose of Section 704 (a) which is to

keep open channels for social change, not

just lay out a cause of action between

the Petitioner and his employer.

In Gunther v. County of Washington,

602 F.2d, 882, 892 (9th Cir. 1979)

“linkages” ( App. A41l) means either

direct or circumstantial evidence, such

as defendant's knowing of plaintiff's

opposition to the allegedly unlawful

practices before an adverse action. The

courts below accepted the Defendant's

“articulation of a legitimate non-

discriminatory reason" for its management

decisions challenged by the Petitioner

yet in granting summary judgment and

dismissal of the Petitioner's cases it

did not grant the Petitioner his right to

question, in detail the “legitimacy” of

the Defendant's actions which Petitioner

deemed improper and as indicia to the

retaliatory actions taken against him

including discharge. The Petitioner

should not be enjoined from defending

himself from the Defendant's

axiomatically induced retaliation

(because he filed complaints of

discrimination) under the cloud of Title

VII analysis by the Courts below which

indicate that he did something wrong in

naming officials of the Navy as alleged

discriminatiny officials (ADO's) and

which required him to establish a

"linkage" of the Petitioner's charges of

retaliation to a basis of intentional

“racial” motivation. This requirement

appears to present a higher standard of

proof than the “preponderance of the

evidence" standard which applies in Title

VII cases. Mead v. U.S. Fidelity

and Guaranty Co., 442 F. Supp. 114

THEE

(1977). In granting summary dismissal

the lower courts denied the Petitioner

the full opportunity to demonstrate by

evidence that the reasons assigned by the

Defendant for the adverse actions taken

were pretextual. Hockstadt v. Worchester

Foundation, 545 F.2d 222 (lst Cir. 1976);

accord, EEOC v. Kallir, Phillips, Ross,

Inc., 401 F. Supp. 66. In their

decisions in granting summary judgment

and dismissal the lower courts also

failed to take into account that "a

defendant's discriminatory conduct and

intent may also be inferred from circum-

stantial evidence." Mead, supra, at p.

L3l.

The failure of the Trial Court, and

the Ninth Circuit's decisions, and the

relative absence of specific Supreme

Court precedent regarding the concept of

retaliation against Plaintiff by

Defendant raises significant questions of

law concerning the protections to be

accorded Title VII plaintiffs under

Section 764(a) relative to the standards

of proof required in proving such cases.

Although there exists other ample

Appellate Court precedent regarding the

broad protection against retaliation the

Trial Court's decision and the Ninth

Circuit Court's affirmation of that

decision seem to go against Congress'

intent that persons who file discrimina-

tion charges are to be fully protected

from any retaliation, both to secure the

rights of the charging party and to avoid

chilling the actions of others who might

sue to implement the guarantees of

Section 704(a) and Title VII, Mead, supra

at 132. The Ninth Circuit Court's affir-

mation of the Trial Court's summary

judgment and dismissal of the

Petitioner's cases seem to be in opposi-

tion to these Appellate Court decisions,

including the Ninth Circuit's own

decisions, e.g., Gunther, supra, and most

recently, in Garcia v. Lawn, 86 Daily

Journal D.A.R. 4099, Dec. 31, 1986

F. 2d , Citing Holt v. Continental

Group Inc. 798 F. 2d 87, 91 (2a Cir.

1983) in the proposition that the

district court is required to consider

the effects of retaliatory conduct on the

exercise of Title VII rights of other

employees.

The Petitioner respectfully urges no

firmer "causal link" to the Petitioner's

discrimination complaints than respon-

dent's charges and specifications, as

contained in his removal letter, can be

found, therefore, this Court should

grant this Petition for a Writ of

Certiorari in order to clarify for the

lower courts the kinds of protections

that are inherent in Section 7@04(a), and

specifically, whether or not "racial

motivation" is a requirement as a stan-

dard of proof in charges of retaliation.

Il. THE NINTH CIRCUIT COURT'S AFFIRMA-

TION OF THE TRIAL COURT'S DECISION ON

AFFIRMATIVE ACTION IGNORES [TS OWN RECENT

FINDING WITH REFERENCE TO THE ACCORDING

OF PREFERENTIAL TREATMENT 'TO MINORITIES

AND WOMEN IN AFFIRMATIVE ACTION CASES.

The Trial Court specified in its

order granting Respondent's motion to

dismiss that 42 U.S.C., Sec. 200He-16(a)

".e. does not require that preferential

treatment be afforded to any employer

based upon his or her minority status

even though such action may be permitted

under a policy of affirmative action,

under certain limited circumstances," and

cited Steelworkers v. Weber, 443 U.S.

193, 205-206, (1979); Firefighters Local

Union No. 1784 v. Stotts, | U.S.

164 Ss. Ct. 2576 (1974) and Page v.

Bolger, 645 F.2d 227, 232-34 and n. 19

(4th Cir. 1981) (en banc), cert denied,

454 U.S. 892 (1981), (App. A3@), as

authority for its finding. The Ninth

£5

Circuit Court affirmed such findings.

Affirmative action has been

addressed, as correctly stated by Respon-

dents in Steelworkers, Stotts, and Page,

sSupta. However, in a recent case before

this Court, i.e., Johnson v. Transporta-

tion-Agency, Santa Clara County,

California 748 F.2d 1308 (9th Cir. 1984)

(hereinafter “Johnson"), the Ninth

Circuit followed the precepts of

Executive Order 11478, and Local Number

93, International Association of Fire-

fighters AFL-CIO C.L.C. v. City of

Cleveland, et al., 46 CCAS. Ct. Bull.,

P. B4521 (hereinafter "Firefighters") and

Local 28 of the Sheet Metal Workers

International Association, et al., v.

et al., 46 CCH S. Ct. Bull, P. B4451

(hereinafter "Sheet Metal Workers") in

clarifying the concept of affirmative

action in holding that an affirmative

action plan is permissible when 1) itis

designed to break down old patterns of

racial segregation; 2) it does not create

an absolute bar to the advancement of

white employees, 3) it does not

unnecessarily trammel the interests of

white employees; and 4) it is a temporary

measure “not intended to maintain racial

balance, but simply to eliminate a mani-

fest racial imbalance." Johnson at 1311.

Johnson also appears to correctly state

the affirmative aspects of AAP's in

stating that an employer need not show

its own history of purposeful discrimina-

tion, Johnson, 770 F.2d at 758; that, it

is sufficient for an employee to show a

conspicuous imbalance in its work force,

Setser v. Novak Investment Co., 657 F.2e

at 962 (8th Cir.) (en banc), cert.

denied, 454 U.S. 1064, 102 S. ct«cse O13,

70 L. Ed. 2d 6081 (1981), that voluntary

affirmative action is a reasonable

response to an "arguable violation" of

Title VII, Weber supra, at 211; that, the

import of any lawful AAP is to give

preference to members of underrepresented

groups, Johnson supra, at 1314, and,

finally, the mere existence of an Oppor-

tunity for members of (discriminated)

groups to apply for jobs will, not by it-

self result in timely attainment of

parity for currently underrepresented

groups, Johnson, supra at 1314. This

Court stated in Firefighters, at B4551l

supra, as follows:

The Court leaves open the question

whether the race-conscious measures

provided for in the consent decree

at issue here were permissible under

Sec. 703

This Court may clarify the issue stated

above with regard to Sec. 703 affirmative

action, in the near future, in its forth-

coming decision re Johnson. The relevant

statistics of an employer, which, of

necessity, are crucial to the affirmative

action case such as in Johnson, and in

the instant case, should require only an

“arguable violation" of Title VII.

Weber, supra, at 21l. The Trial Court

below demanded more than an “arguable

violation" citing Page, supra, by

discrediting Petitioner's statistics

which are derived from official reports

of the Respondent, and, from oversight,

agencies of the Federal Government. This

Court also addressed this matter in Sheet

Metal Workers, supra, at B4483, in

stating:

The purpose of affirmative action is

not to make identified victims

whole, but rather to dismantle prior

patterns of employment discrimina-

tion and to prevent discrimination

in the future.

The Petitioner respectfully asserts

herein that the lower courts findings do

not comport with recent Supreme Court,

and other Ninth Circuit Court decisions,

re affirmative action, but rather retard

the implementation of congressional

intent and EO 11478 affirmative action.

Sheet Metal Workers supra, at B4463. As

stated in Sheet Metal Workers, at B4490, 7

in response to the solicitor-general's

arguments against affirmative action

We decline petitioners’ invitation

to read Stotts to prohibit a court

from ordering any kind of race-

conscious affirmative relief that

might benefit nonvictims.

The Petitioner respectfully suggests that

although his is not a Sec. 706(g) case,

and even though he was not selected (on

repeated occasions) for more responsible

positions by his employer, and the

Respondent admits that affirmative action

was specifically not considered in the

Petitioner's non-selection for the CPD,

Rota, Spain, position (in 1976), the

Respondent was obligated under his own

AAP to not only consider affirmative

action, but to attempt to eliminate a

manifest racial imbalance (Johnson,

Supra, at 1311). The instant case,

herein, is juxtaposed to the other cited

cases, and to Johnson, supra, in that

Johnson was voluntarily selected for a

higher level position in conformance to

the employer's AAP (even though she was

admittedly less qualified than the

employee who was not selected). As a

consequence, the question posed here is

whether the employer had (or has) an

affirmative requirement to follow its own

AAP in response to an “arguable viola-

tion" or is the employer entitled to

"“adinittedly" ignore its own AAP, Page,

Supra, notwithstanding.

The Petitioner believes the Petition

for the Writ of Certiorari should be

issued based upon the unanswered

questions above, and because of

concurring opinion in Firefighters,

Supra, at B4521, and the closeness of the

legal questions posed relative to

_aneanmntntneetteteetetsts.

Johnson, supra.

Ill. CLARIFICATION IS REQUIRED CONCERNING

VIOLATIONS OF EMPLOYER REGULATIONS IN

CARRYING OUT ACTS OF DISCRIMINATION AND

RETALIATION BASED UPON AN AUTOMATIC

RETALIATORY RESPONSE TO EMPLOYEE CHARGES

OF DISCRIMINATION AGAINST THE EMPLOYER AS

RELEVANT INDICIA TO A CIRCUMSTANTIAL,

PRIMA FACLE CASE ELSE SUCH EMPLOYER

VIOLATLONS IF CARRIED OUT WITH IMPUNITY

IN TITLE VIL CASES CAUSE A GENERAL STATE

OF LLLEGALITY AND DISORDER IN THE

GOVERNMENTAL BODY POLITIC.

Petitioner respectfully submits that

Certiorari review by this Court on this

matter is necessary insofar as the Trial

Court did not address any of Petitioners

allegations of statutory and regulatory

violations which were offered as relevant

indicia to the establishment of a prima

facie case of discrimination/ retalia-

tion. Nor did the Ninth Circuit Court

address this vital issue. The Statement

of the Case, supra, outlines several

allegations of regulatory and statutory

violations which adversely affected the

Petitioner yet only a general and

conclusory opinion by the lower court,

was rendered ina finding of "no discrim-

ination." The consequences of a federal

employers’ refusal to acknowledge the

requirements of the Office of Personnel

Management (OPM) regulations, insofar as

they relate to an employee's allegations

of discrimination/retaliation should not

be condoned.

FPM supplement 752-1, states, at

paragraph 4a(3) at p. 12, in part, as

follows:

Finally, agencies should remember

that they must satisfy any of their

Own regulatory requirements which

may go beyond those in Part 752. In

the case of Watson v. U.S., the

Court of Claims held that the

procedural regulations of an agency

issued under statutory authority

have the force and effect of law and

must be complied with by the agency

-eaaeaaeaeeeeeetretrtrt

that issued them. |

In accord, Service v. Dulles, 354 U.S.,

363,372; Vitarelli v. Seaton 359 U.S.

535.

As recognized and admitted by the

Trial Court there was undue delay in the

processing of the Petitioner's complaints

of discrimination under the procedures

outlined in 29 CFR 1613.211 through 29

CFR 1613.222 (the “extended” procedure),

and in 29 CFR 1613.261 and 262(b) (the

“expedited procedure” in reprisal

charges). The delay in processing of

complaints allows employers time to

engage in, if not intentional “restraint

and interference," then unintentional

delay thus tainting the discrimination

complaint process allowing for

unwarranted employer disciplinary or

other adverse personnel actions. One

need only review the charges and specifi-

cations in the proposed letter of removal

——

issued to the Petitioner to see the 2

"linkage" to his “constructive discharge"

from his position as CPO, NAS Miramar in ag

removal relate specifically to the a

Petitioner's charyes of discrimination/ is

reprisal. Yet, the Trial Court, and the ag

March 1977. That is, employer charges of :

Ninth Circuit Court failed to see any

"linkage." The Trial Court acknowledged

in its decision from the bench it was eo

“perplexed" by the fact that the

employer, et al., took many times over ™

the usual or recommended time periods to =

handle the Petitioner's complaints.

Nevertheless in its order granting motion me

to dismiss the Trial Court finds no

"linkage" between the adverse actions

taken against the petitioner relative to

his filing of prior EEO complaints (App.

at A4l). The Trial Court, in its

order, was moot on the subject of the

more subtle forms of “restraint and

interference" (29 CFR 1613.262(b))

charges lodged by the Petitioner.

The Petitioner respectfully contends

that by upholding the Trial Court's

order, the Ninth Circuit Court of Appeals

has acquiesced to the employer's overt

and covert forms of discrimination/

reprisal which include regulatory viola-

tions which are subsumed in Title VII

analysis conducted by the employer (and

oversight officials of agencies and the

EEOC). The Ninth Circuit's holding

permits employer conduct which is tanta-

mount to circumvention of the laws,

rules, and reguiations affecting all

employees of the employer. Discrimina-~

tion complaints should be processed in an

atmosphere of full and free disclosure

and without restraint, Shipp v. Walker 13

FEP Cases 163, 166, U.S.D., C.D.C. 1975;

In Re Charge to Grand Jury, Fed. Rep.

Vol. 62, at 83l.

CONCLUSION

For the reasons stated above, this

Petitiom for a Writ of Certiorari should

be granted.

Respectfully submitted,

Raymond R. Torres, In Propria Persona

Dated: 20 February 1987

tae net eR eR BRE SE & mw

APPENDIX

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

RAYMOND R. TORRES, Plaintiff,

Vs.

SECRETARY OF THE NAVY, Defendant

_— eee ee ee

NO. 78-8256-B (TI)

82-0294-B (I)

[CONSOLIDATED]

FINDINGS OF FACT, CONCLUSIONS OF

LAW AND ORDER GRANTING MOTION TO

DISMISS, PURSUANT TO RULE 41(b),

FED. R. CIV. P.

Trial of the above-entitled consoli-

dated actions commenced on July 3, 1984,

before the court, sitting without a jury,

and proceeded through approximately

twenty-three and one-half (23 1/2) trial

days before plaintiff rested his case, on

Ce ee ie ee ee ee ee ee

A-3

August 29, 1984. Plaintiff, Raymond R.

Torres, was represented throughout the

trial by attorneys Robert W. Rutherford

and Lawrence E. Phillips, and the defen-

dant Secretary of the Navy was

represented by Stephen V. Petix,

Assistant United States Attorney.

On August 29, 1984, at the close of

plaintiff's case, the defendant moved for

dismissal of the plaintiff's consolidated

actions and all of the causes of action

included therein under Rule 41(b) of the

Federal Rules of Civil Procedure, which

provides in pertinent part, as follows:

After the plaintiff, in an action

tried by the court without a jury,

has completed the presentation of

his evidence, the defendant, without

waiving his right to offer evidence

in the vent the motion is not

granted, may move for a dismissal on

the ground that upon the facts and

the law the plaintiff has shown no

right to relief. The court as trier

of the facts may then determine them

and render judgment against the

plaintiff or may decline to render

any judgment until the close of all

the evidence. If the court renders

judgment on the merits against the

A-4

Plaintiff, the court shall make

findings as Provided in Rule 52(a).

Unless the court in its order for

dismissal Otherwise Specifies, a

dismissal under this subdivision and

any dismissal not Provided for in

this rule, other than a dismissal

for lack of jurisdiction, for

improper venue, or for failure to

Join a party under Rule 19, operates

as an adjudication upon the merits.

The Court has attempted to weigh the

evidence and resolve any conflicts, in

accordance with its role under the law as

the fact finder. Wilson v. United

States, 645 F.2q 728, 730 (9th Cir.

1981). Pursuant Co Rule 52(a), Fed. R.

Civ.P., and limiting its consideration to

that evidence presented in the

Plaintiff's case-in-chief, the court

makes the following findings of fact and

conclusions of law:

FINDINGS OF FACT

ae VE PACT

A. The consolidated actions before

the court allege unlawful discrimination

in federal employment, and related

retaliatory conduct, all prohibited by

Pere a

A-5

Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. S 200Ge-16,

which provides, in pertinent part, as

follows:

(a) All personnel actions

affecting employees. .- « in

military departments .. - shall be

made free from any discrimination

based on race, color, religion, sex,

or national origin.

2. The plaintiff, Raymond R.

Torres, is an individual of Hispanic

national origin, namely, "Spanish-

Mexican-American," as alleged in his

complaints.

3. At all times pertinent to this

case, plaintiff was a civilian employee

of the Department of the Navy, entitled

to the protections of Title VII o* the

Civil Rights Act of 1964, as amended 42

U.S.C. S 2000e-16.

4. The court is asked to grant

judgment of dismissal of plaintiff's

case, which the defendant characterizes

as four (4) discrete instances of alleged

A-6

discrimination or reprisal. they

include: (1) the nonselection of

plaintiff for the Civilian Personnel

Director (GS-13) position at Naval

Station, Rota, Spain, in June of 1976;

(2) the transfer of the personnel

servicing function from Naval Air Station

(NAS) Miramar to NAS North Island, in the

spring of 1977, in which the plaintiff's

position as Civilian Personnel Officer at

Miramar was abolished, and he was

transferred to a different position at

the same grade level (GS-12) at North

Island; (3) the withdrawal of plaintiff's

tentative selection to the Civilian

Personnel Director (CPD) position (GS-

12), at Marine Corps Air StTation (MCAS)

Iwakuni, Japan in the spring of 1977; and

(4) the plaintiff's removal from federal

employment at NAS North Island, in

January of 1980.

“gg , —

A-7

NON-SELECTION FOR THE ROTA, SPAIN CPD

POSITION

5. From the evidence presented in

the plaintiff's case, Mr. Torres made a

timely application for the CPD position

at Rota, Spain, and was considered ina

field of approximately 85 applicants, out

of whom it was determined over 60 were

basically qualified. That group was

evaluated by a rating and ranking panel

that was established under procedures

authorized by the Navy's Office of

Civilian Manpower Management (OCMM).

6. As a result of that rating and

ranking panel procedure, the plaintiff

was determined to be mong the six "best

qualified" candidates. This meant that

the plaintiff's name was placed in alpha-

betical order ona list with that of the

other five (5) "best qualified" candi-

dates, and this list was sent to the

"selecting official," the "Commanding

Officer of Naval Station, Rota, Spain,

A-8

along with the application files of all

Six (6) candidates.

ve The Commanding Officer at Rota,

Spain, personally reviewed the file

jackets of all six of the "best

qualified' candidates submitted to him

for consideration. In addition, said

selecting official sought the advice of a

locally constituted advisory selection

panel, which recommended to him Mr.

William Wardlow, one of the other five

finalists on the "best qualified" list.

Based upon that recommendation, plus his

Own personal evaluation of the

applications submitted by all of the six

finalists, the Commanding Officer at Rota

selected Mr. Wardlow for the CPD

position.

8. Although the plaintiff was

ranked in the "best qualified’ group,

along with the other five finalists,

there was nevertheless a shade of

A-9

difference in qualifications between the

plaintiff and Mr. Wardlow, and the

selecting official viewed Mr. Wardlow's

qualifications as superior.

9. It further appears that the

selecting official, Captain Richard

Damico, did not consider affirmative

action policies of the Navy in making his

selection of Mr. Wardlow; but rather made

his selection based entirely on merit

considerations.

18. From the evidence of record

in the plaintiff's case, it appears

ebaeas that there was no evidence of

any act or intent by the defendant or any

of his officers or agents, to

discriminate against the plaintiff or any

applicant for the Rota CPD position,

based upon his or her national origin,

whether it be Hispanic or otherwise.

11. In summary, the Court finds

from all the evidence presented in the

A-lw

plaintiff's case, by a substantial

preponderance of the evidence, that

plaintiff has failed to present a prima

facie case of discrimination in the

process that led to his nonselection for

the CPD position at Rota, Spain, in June

of 1976.

THE "TRANSFER OF FUNCTION"

12. The second major personnel

action that affected the plaintiff was

the transfer of the personnel servicing

function from NAS Miramar to NAS North

Island,in the Spring of 1977. This

resulted in the abolishment of

plaintiff's position as the Civilian

Personnel Officer at Miramar (GS-12) and

his temporary,then permanent,

reassignment to North Island to a

different (non-supervisory) position at

the same GS-level.

13. The Court finds, with respect

€

to this “transfer of function" issue,

[

“

A-11

that there was a demonstrated lack of

ability in the Civilian Personnel Office

at NAS Miramar to correct known and long-

standing personnel program deficiencies

that had been identified as far back as

1974 through 1976, and later. It is

clear from the evidence educed in the

plaintiff's case that there was a serious

absence of skill -aboard NAS Miramar in

the personnel functions of position

classification, as well as program

management. The evidence indicated that

position classification is a function

which was under the direct responsibility

of the plaintiff, as Civilian Personnel

Officer (CPO), to administer and super-

vise. It is also clear from the record

that from the time plaintiff assumed his

duties as CPO at Miramar in September

1973, until he was transferred in the

spring of 1977, there was little signifi-

cant progress to correct the position

A-12

classification problems experienced at

that command. Indeed, the evidence of

record is substantial that in some

respects the personnel problems at

Miramar worsened after 1974, in the sense

that the orderly performance of duty by

the plaintiff's subordinates deterior-

ated, along with their morale. In part,

this appears to be due to the lack of

experience and depth in plaintiff's

office, together with plaintiff's own

problems of supervision. In particular,

the Court finds that the plaintiff did

little to correct improper classification

problems that were repeatedly brought to

his attention at NAS Miramar, and his

inability or unwillingness to do so even-

tually was instrumental in the transfer

of function, as well as his later non-

selection to the job in [wakuni, Japan.

14. While the Court finds evidence

that personality problems arose between

‘g

A-13

the plaintiff and the NAS Miramar

Commanding Officer, Captain Donald

Pringle, the Court also finds from the

evidence presented that these personality

problems were caused by the personnel

program problems already identified by

the Court, and not vice versa. The

Commanding Officer's frustration and

impatience are not difficult to under-

stand, where he perceived that per sonnel

problems under his command responsibility

were not being solved in an appropriate

and timely manner. While the Court

recognizes that personality problems

existed which may have exacerbated the

relationship between the plaintiff and

Captain Pringle, it also finds that this

“\

was not the reason fer the transfer of

: en ;

function. Nor did the C.O.'s impattence _

with the plaintiff invalidate the legiti-

mate business decision to correct the

deficiencies in the Miramar Civilian

A-14

Personnel Office by transferring the

personnel servicing function to the

admittedly superior, larger and more

adequately staffed Industrial Relations

Department at NAS North island.

} 5. In sum, it appears to the

Court, by a substantial preponderance of

the evidence, that the transfer of

function was not motivated by discrimina-

tion, but rather was a iegitimate

business decision, made by the Commanding

Officer and his chain of command, on the

advice and consent and recommendation of

the Western Field Division of the Office

of Civilian Manpower Management

(WFD/OCMM) after representatives of that

office had inquired and made substantial

study of the conditions at NAS Miramar.

16. The Court specifically finds

that whatever reasons existed for Captain

Pringle's impatience and frustration

toward the plaintiff, there is no

“

A-15

evidence from which it can infer that he

was motivated by mr. Torres' national

origin, or the fact that the plaintiff

may have previously filed one or more EEO

complaints against the Navy. Despite all

the evidence of disagreements, of frus-

trations and of impatience with regard to

the functioning of the Miramar Civilian

Personnel Office, it is impossible for

this Court to detect any attempt by any

Navy official involved in the transfer of

function decision to discriminate or

retaliate against the plaintiff, in

violation of Title VII.

17. The Court further specifically

finds that the circumstances surrounding

the worsening of the conditions at NAS

Miramar's Civilian Personnel Office would

alone have been sufficient cause to moti-

vate the Navy to transfer the personnel

function to NAS North Island, regardless

of the plaintiff's minority status, and

A-16

regardless of any pre-existing complaints

of discrimination. From all of the

evidence presented in the plaintiff's

case, it appears that plaintiff's

national origin had absolutely nothing to

do with the breakdown of the relationship

between plaintiff and his Commanding

Officer that occurred in connection with

the transfer of function.

THE TENTATIVE SELECTION TO THE CPD

POSITION AT IWAKUNI

18. In the- spring of 1977, it

appears that the plaintiff was initially

tentatively selected for the position of

Civilian Personnel Director (CPD) at

Marine Corps Air Station, Iwakuni, Japan.

The selection process for CPD positions

in the Marine Corps involved a pre-

liminary selection by the local

commanding officer, but this tentative

selection had to obtain the approval of

the Commandant of the Marine Corps, in

A-17

Washington, D.C., before it was final.

Before the plaintiff's tentative selec-

tion could be acted upon by the

Commandant, Mr. William Meaut, a Navy

official, alerted Mr. Samuel Schulman,

the top Marine Corps civilian personnel

officer, about the personnel program

audits that had been conducted at NAS

Miramar by the Civil Service Commission

(csc) and the Western Field Division of

the Navy's Office of Civilian Manpower

Management (WFD/OCMM).

19. These aforementioned program

auc ts of NAS Miramar by CSC and WFD/OCMM

both revealed deficiencies in position

classification, which Mr. Schulman

considered to be quite significant in

selecting a qualified applicant for the

CPD job at Iwakuni. The announcement for

the job itself had included the require-

ment that the selectee have a strong

background in position classification.

A-18

20. The Court finds that there was

no impropriety in Mr. Meaut's advising

Mr. Schulman of the CSC and WFD/OCMM

program audits that revealed deficiencies

in the plaintiff's personnel program at

NAS Miramar. Mr. meaut's information was

correct information, and Mr. Schulman was

not misled. Furthermore, it is apparent

that this was important information for

the marine Corps to know in making its

selection for the CPD position at

Iwakuni, Japan. Indeed, Mr. Meaut would

have been subject to criticism had he not

alerted Mr. Schulman as to the existence

of this information.

21. The Court specifically finds

that the withdrawal of the plaintiff's

tentative selection to the Iwakuni posi-

tion was based on the adverse information

contained in the CSC and WFD/OCMM audits,

and not on the plaintiff's national

origin, or any motive for reprisal. The

A-19

Court would expect that whoever had been

tentatively selected would have been

withdrawn from consideration, if that

kind of information had been furnished,

regardless of the race, sex, creed or

national origin of the tentative

selectee. Accordingly, Mr. Schulman was

credible when he testified by deposition

that he made an independent decision to

withdraw plaintiff from consideration,

based solely on the audit reports of the

WFD/OCCM and the CSC, and that he felt

free to disregard Mr. meaut's initial ~

information,had he not found it to have

been substantiated by the reports.

THE REMOVAL FROM FEDERAL EMPLOYMENT

22. In January of 1980, the plain-

tiff was removed from his federal employ-

ment as a GS-12 Classification

Specialist. Actually, the Court views

this as an attempted removal, since the

merit Systems Protection Board (MSPB)

A-26

eventually reinstated the plaintiff with

all accrued back pay and allowances after

he pursued his administrative appellate

remedies before that body.

23. The Court makes no finding as

to whether this attempted removal by the

Navy was substantially a correct action

to take. Nor does the Court make any

finding as to whether the MSPB was

correct in overturning that removal.

Neither of those issues is properly

before this Court.

24. The only issue before this

Court i. whether the plaintiff has

presented sufficient evidence to prove

that the attempted removal was motivated

by discrimination or reprisal. The Court

finds that he has not.

25. More specifically, the Court

finds that the-attempted removal was not

the product of discrimination or reprisal

against the plaintiff. Rather, the

A-21

evidence without contradiction demon-

strates that the local command possessed

ample reliable evidence of the plain-

tiff's alleged misconduct and

unprofessional activities to support the

decision to process Mr. Torres for

removal. Ironically, this evidence

included sworn allegations that the

plaintiff had made unprofessional

comments on the subjects of race and

national origin, among other things, and

that he had tried to intimidate his co-

employees concerning matters related to

plaintiff's EEO complaints or his Title

VII suit. It is conceded that if those

allegations were true, that the kind of

conduct described would be the kind of

conduct that would merit removal.

THE VARIOUS SHORT-FORM REPRISAL

COMPLAINTS —

26. In addition to the four major

EEO complaints that plaintiff filed

actions that have been discussed above,

the plaintiff filed several additional

"short-form" (or "262(b)") complaints

with the Navy, primarily concerning the

manner in which the Plaintiff's "long"

complaints were being processed. These

several "short-form" complaints were

Offered, along with allegations of a

second rejection for the Rota, Spain, CPD

Position in 1977, as evidence of retalia-~

tion and reprisal by the defendant.

27. While the Court notes that the

Navy failed to deal in an appropriate way

with the repeated "short-form" complaints

generated by the Plaintiff, and that the

So-called "long" complaints generally —

took longer than the recommended time

Periods to be resolved, these procedural

Problems do not appear to have had any

direct relationship to the personne]

actions that are complained about in the

A-23

various "long" complaints. In the case

of each of these major personnel actions,

the Court finds by a substantial prepon-

derance of the evidence that the action

taken by navy officials was supported by

valid, sufficient, understandable and

logical business reasons all of which was

shown by plaintiff's case in chief. And

despite a substantial effort on the part

of the Court to find evidence that the

plaintiff was the victim of discrimina-

tion or reprisal, there is simply nothing

probative offered by the plaintiff upon

which to base a finding that the Navy

discriminated against the plaintiff.

CONCLUSIONS OF LAW

l. This Court has subject matter

jurisdiction over these consolidated

actions,under 28 U.S.C. S 1331 and 42

U.S.C. S 2808e-16(c).

2. As a federal employee, plain-

tiff's exclusive remedy for alleged

A-24

national origin discrimination against

him lies under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C

S 200e-16. Brown Ve G.S.A., 425 U.S. 820

(1976). The same is true with respect to

allegations of reprisal that arise out of

plaintiff's exercise of his rights under

Title VII. White v. General Services

Administration, 652 F.2d 913 (9th Cir.

1981).

3. In a disparate treatment case,

the plaintiff merely has the initial

burden of establishing a prima facie case

by a preponderance of the evidence, and

in doing so he must identify some

discriminatory criterion "as the likely

reason for the denial of a job oppor-

tunity." Cassillas v. Secretary of the

Navy, 735 F.2d 338, 3443 (9th Cr. 1984).

If the plaintiff establishes such a prima

facie case, the defendant employer must

then present evidence that the employment

A-25

or promotion action was taken for a

legitimate, non-discriminatory reason.

United States Postal Service Board of

Governors v. Aikens, 460 U.S. 71l, 103 S.

Ct. 1478, 1481 (1983). The employer need

not present clear and convincing evidence

of non-discrimination. Felton v.

Trustees of the California State Univer-

sities and Colleges, 708 F.2d 1507, 1508

(9th Cir. 1983). Once the employer has

presented admissible evidence showing its

legitimate business reasons, any prima

facie presumptions “drop from the case"

and the court may then decide the

ultimate factual issue of whether the

employer's action was grounded upon

impermissible discrimination.

Casillas v. Secretary of the Navy, 735

F.2d at 343. In the context, plaintiff

may rebut the defense by showing pretext.

Texas Dept. of Community Affairs v.

Burdine, 45@ U.S. 248 (1981).

A-26

4. Utilizing the foregoing princi-

ples for evaluating the evidence

presented in the plaintiff's case in

chief, this Court has found that the

plaintiff has failed to carry his initial

prima facie burden of showing that some

discriminatory criterion was the likely

reason for the denial of a job Oppor-

tunity. The plaintiff was given ample

Opportunity to demonstrate that the

Navy's actions constituted discriminatory

conduct, but nevertheless failed to do so

as to many of the personnel actions that

affected him. Indeed, the plaintiff's

presentation established the non-

pretextual legitimate business reasons

for the actions which were taken by the

defendant.

5. The court also gave plaintiff

ample opportunity to establish a "dis-

parate impact" case, despite the fact

that he had never sought certification of

A-27

his suit as a class action. Statistical

evidence of disparate impact may be cir-

cumstantially relevant in a disparate

treatment case as well. Gay V- Waiters'

& Dairymen's Union Local No. 30, 694 F.2d

531 (9th Cir. 1982). However, plaintiff

failed to produce any probative evidence

of disparate impact that would justify

giving serious consideration to this

theory. See, Moore v. Hughes Helicopters

Inc., 708 F.2d 475, 481-82 (9th Cir.

1983). In fact, the only "facially"

neutral employment practice that could be

said to be involved in this case,namely,

the rating and ranking process for

civilian personnel directors in the Navy,

arguably had no adverse impact on the

plaintiff at all, since he emerged from

that process as one of six "best

qualified" for selection, and the

numerical score he received was not

controlling in the ultimate selection

decision.

6. Nor, as a matter of law, were

plaintiff's attempts to present statist-

ical evidence of any help to his case.

While the Court admitted plaintiff's

offer of statistical evidence, using the

most liberal criterion of admissibility,

plaintiff ultimately failed to relate

these statistics to any part of his case.

The statistics offered were rendered

virtually worthless, since they were

admittedly inaccurate and since no

meaningful effort had been made by plain-

tiff's purported expert to adjust them

demographically. Accordingly, this Court

could not properly accord plaintiff's

statistical evidence any probative value

as evidence of discriminatory animus.

Casillas v. Secretary of the Navy, 735

F.2d at 345. See,

White v. City of San Diego, 605 F.2d 455,

460 (9th Cir. 1979). Further, insofar as

)

A-29

the plaintiff offered statistics to prove

that his nonselection to a particular

supervisory position was discriminatory,

they were practically valueless, since

they constituted comparisons to the

general population, and failed to

“properly characterize the labor pool

available for the job at issue,”

Casillas, 735 F.2d at 345-46, and failed

to consider the special qualifications

necessary to fill civilian personnel

direct positions. See, Piva v. Xerox

Corp., 654 F.2d 591, 596 (9th Cir. 1981);

Gay v. Waiters’ and Dairy Lunchmen's

Union Local No. 30, 694 F.2d 531, 552-53

(9th Cir. 1982); Moore v. Hughes

Helicopters, Inc., 708 F.2d at 482-83.

7. Similarly, plaintiff's allega-

tion that the Navy failed to implement

its affirmative action policies, so as to

insure his selection to the Rota, Spain,

CPD position, is evidence only of plain-

A-3@

tiff's misunderstanding of the require-

ments of Title VII. Title VII does

require that all federal employees be

afforded equal opportunity in all

personnel actions that affect them. 42

U.S.C. S 200e-16(a). It does not require

that preferential treatment be afforded

to any employee based upon his or her

minority status, even though such action

may be permitted under a policy of affir-

mative action, under certain limited

circumstances. See, Steelworkers v.

Weber, 443 U.S. 193 205-06 91979);

Firefighters Local Union No. 1784 v.

Stotts, 104 S. Ct. 2576 (1984). An

alleged violation of a race-conscious

affirmative action program does not

constitute a per se violation of Title

Vil. Page v. Bolger, 645 F.2d 227, 232-

34 and n. 10 (4th Cir. 1981( en banc),

cert. denied, 454 U.S. 892 (1981). Title

VII does not require an employer to

OO SS ————— a. cael

A-31

restructure his or her employment

practices to maximize the number of

minorities hired or advanced. Furnco

Construction Co. v. Waters, 438 U.S. 567,

577-78 (1978).

8. With respect to plaintiff's

various charges of reprisal, this Court

has found that no probative evidence has

been presented to establish that the

challenged personnel actions were moti-

vated by a desire to discriminate or

retaliate. In other words, plaintiff has

failed to demonstrate that the actions

taken adverse to his interests can be

causally linked to his filing of prior

EEO complaints. More must be shown than

the mere fact that an adverse personnel

action occurred subsequent in time to

plaintiff's filing of an EEO complaint.

See, Williams v. Boorstin, 663 F.2d 199,

114-15 (D.C. Cir. 1980), Cert. denied,

451 U.S. 985 (1981); Wrighten v. Metro-

A-32

politan Hospitals, Inc., 726 F.2d 1346,

1354 (9th Cir. 1984).

9. Nor is the plaintiff's rein-

statement by the MSPB after his removal

legally dispositive of the issues before

this Court, which must decide de novo

whether that attempted removal was moti-

vated by discrimination or reprisal. As

noted above, the Court has found that the

initiation of the process to remove the

plaintiff was based upon ample reliable

evidence of the plaintiff's alleged mis-

conduct and unprofessional activities.

Even assuming that the Navy officials who

proposed the removal action were honestly

mistaken in their belief that this

misconduct had taken place, this would

not constitute unlawful discrimination or

reprisal under Title VII. Corley v.

Jackson Police Department, 566 F.2d 994,

1903 n. 14 (Sth Cir. 1978); cf. Clark v.

Huntsville City Board of Education, 717

—- ee ee ee re ee - i———< << | an ao erect tenant oe =_— _— cual Se cal

EE ae a. mm === ~——

A-33

F.2d 525, 528 (11 Cir. 1983) (mistaken

belief that selectee's qualifications

superior to the plaintiff's).

18. In the instant case, plaintiff

has failed to carry his burden of

persuading the finder of fact that the

defendant, his officers or agents, inten-

tionally discriminated against plaintiff

because of his national origin with

respect to any of the alleged incidents

of discrimination.

11. Nor has plaintiff met his

burden of demonstrating that the defen-

dant took adverse action against him

because of the fact that plaintiff had

previously engaged in activities

protected by Title VII.

12. In view of all of the fore-

going, the defendant Secretary of the

Navy is entitled to dismissal of plain-

tiff's consolidated actions and all of

the causes of action included therein,

A-34

pursuant to his motion to dismiss, under

Rule 41(b) of the Federal Rules of Civil

Procedure. This shall be deemed a ruling

on the merits of the case, since the

Court has endeavored to weigh the

evidence and resolve any conflicts

presented thereby. Wilson v. United

States, 645 F.2d 728, 730 (9th Cir.

1981).

13. The foregoing shall constitute

the findings of fact and conclusions of

law required by Rule 52(a), Fed. R. Civ.

P. Those findings of fact that should

more properly constitute conclusions of

law shall be deemed conclusions of law,

and those conclusions of law that should

more properly constitute findings of fact

shall be deemed findings of fact.

In view of all of the foregoing, and

good cause appearing therefore,

IT IS HEREBY ORDERED AND ADJUDGED

that the defendant's motion to dismiss at

ae Oth il

A-35

the close of plaintiff's case, brought

under Rule 41(b), Fed. R. Civ. P., shall

be and the same is GRANTED. Judgment may

be entered accordingly in favor of the

defendant, together with costs of suit.

DATED: November 16, 1984

RUDI M. BREWSTER

UNITED STATES DISTRICT JUDGE

A-36

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

RAYMOND R. TORRES, Plaintiff,

vs.

)

SECRETARY OF THE NAVY, Defendant )

)

Civil Nos. 78-@256-B(I)

82-0294-B(I)

JUDGMENT FOR COSTS

Plaintiff's motion to disallow costs-

came on for hearing on January 4, 1985,

before the Honorable Rudi M. brewster,

United States District Judge, attorney

Sergio Luis Lopez, Esquire, appearing

specially on behalf of plaintiff Raymond

R. Torres, and Assistant United States

Attorney D. Michael Waltz, appearing on

behalf of the defendant Secretary of the

Navy. Having heard and considered the

arguments of counsel, both oral and

written, and being well advised in the

premises, and good cause appearing

IE Oe... Dee

therefore,

It IS HEREBY ORDERED, ADJUDGED and

DECREED that the Court, having entered

judgment for defendant on December ll,

1984, providing that costs be awarded to

the defendant, the Court now finds that

costs should be awarded to the defendant

and against the plaintiff in the amount

of $14,344.12; and

IT IS FURTHER ORDERED AND ADJUDGED

that plaintiff's motion to disallow costs

shall be denied.

DATED: Jan. 24, 1985

RUDI M. BREWSTER

UNITED STATES DISTRICT JUDGE

PRESENTED BY:

| PETER K. NUNZ

United States Attorney

STEPHEN V. PETIX

Assistant U.S. Attorney

Attorneys for Defendant

| APPROVED AS TO FORM (upon oral reading to

| counsel )

| by: SERGIO LUIS LOPEZ

Attorney for Plaintiff

(Appearing Specially)

iene

A-38

UNITED STATES COURT OF APPEALS

“FOR THE NINTH CIRCUIT

RAYMOND R. TORRES, Plaintiff-Appellant,

vs.

)

SECRETARY OF THE NAVY, Defendant-Appellee)

)

CA No. 84-6537

DC No. CV-78-9256-B(I)

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Honorable R.M. Brewster,

District Judge, Presiding

Argued and Submitted November 5, 1986

Pasadena, California

Before: BROWNING, Chief Judge, GOODWIN

and FARRIS, Circuit judges.

Raymond R. Yorres, of Spanish-

Mexican-American descent, appeals from

judgment entered in his Title VII action,

which centered on four separate

employment actions by the Navy. His

complaint alleged that the actions were

*This disposition is not appropriate for

publication and may not be cited to or by

the courts of this circuit except as

provided by 9th Cr. R. 21.

. A-39

resolved adversely to him asa result of

racial discrimination or in retaliation

for his piesteatenk charges of

discrimination in administrative and

judicial proceedings.

We have carefully reviewed the

extensive record in this matter. After

hearing twenty-one days of testimony in

the plaintiff's cases, which followed

extensive discovery, the trial court

entered findings of fact and conclusions

of law and granted judgment for the

defendant.

We recognize that the court's

findings differ from those Torres

believes the evidence dictates, but we

review factual findings for clear error.

The record reflects a careful and

detailed review of Torres’ allegations

and evidence. It supports the findings.

We cannot review evidence as to its

weight or credibility. Palmer Coking

rer ener cee

A-40

Coal Co. v. Director, Office of Workers'

Compensation Programs, 720 F.2d 1054,

1058 (9th Cir. 1983); Thomas v. Andrus,

552 F.2d 871, 872 (9th Cir. 1977) (per

curiam). Findings of fact will be

overturned only if they are clearly

erroneous. Bohemia, Inc. v. Home

Insurance Co., 725 F.2d 596, 588-89 (9th

Cir. 1984).

WE have also reviewed the record to

determine whether, as Torres argues, the

trial court failed to consider the

retaliation aspect of his claim. With

this argument, Torres indicates his

misunderstanding of the issues. The

court found no racial discrimination.

Torres understands this, even though he

disagrees with the finding. He argues,

however, that if the actions of which he

complains were not the result of discrim-

ination, they were done to retaliate

against him for making persistent charges

A-41

of discrimination. This argument, he

alleges, was not addressed by the trial

court. However, the trial court found no

evidence of racial motivation for any

actions taken by the Navy and no "causal

link" between those actions and Torres'

discrimination complaints. There is

substantial evidence in the record to

support this finding. Our careful review

satisfies us that the trial court

resolved each factual dispute and applied

proper legal standards in reaching its

decision.

Torres argues that no costs should

have been allowed against him since costs

should only be awarded to a defendant in

a Title VII case when the suit is

frivolous. He relies upon Lewis v. NLRB,

750 F.2d 1266 (5th Cir. 1985). He

misunderstands the holding of Lewis. The

award of costs by a trial court is within

the court's discretion under Title VII.

A-42

We review for abuse of discretion.

Wrighten v. Metropolitan Hospitals, Inc.,

726 F.2a 1346, 1357-58 (9th Cir. 1984);

Moore v. Hughes Helicoptesr,Inc., 7908

F.2d 475, 486 (9th Cir. 1983). We find

no abuse of discretion.

AFFIRMED.

(Filed November 24, 1986)

A-43

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCULT

RAYMOND R. TORRES, Plaintiff-Appellant,

Vv.

SECRETARY OF THE NAVY, Defendant~Appellee

CA No. 84-6537

DC No. CV-78-8256-B(I1)

Southern District of California

ORDER

BEFORE: BROWNING, Chief Judge, GOODWIN

and FARRIS, Circuit Judges.

The panel as constituted in the

above case has voted to deny the petition

for rehearing and to reject the suggestion

for a rehearing en banc.

The full court has been advised of

the suggestion for an en banc hearing,

and no judge of the court has requested a

vote on it. Fed. R. App. P. 35(b).

The petition for rehearing is denied

and the suggestion for a rehearing en

banc is rejected.

(Filed January 14, 1987)

CERTIFICATE OF FILING

I, Raymond R. Torres, Petitioner,

hereby certify that on February 20, 1987,

the original Petition for Writ of Certi-

orari was deposited with the United States

‘ost Office, and the mailing of said Pet-

ition took place within the time permitted

by the rules of the Supreme Court of the

United States. A copy of said Petition was

served upon the Solicitor General, Depart-

ment of Justice, Washington, D.C. 20530,

and upon Stephen v- Petix, ESdqo, Assistant

U.S. Attorney, 940 Front Street, Room

5-N-19, San Diego, CA 92189, at the same

time and place as stated above.

Executed this 20th day of February

1987, at 10910 Glencreek Circle, CA 92131.

Legge el

YMOND R. TORRES, Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.