Petition for Writ of Certiorari — Rivera v. Frank

Supreme Court brief1988

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SUPREME COURT OF THE UNITED STATHB | Ll, t

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OCTOBER TERM, 1988 | . MAR cl

FORTUNATO C. RIVERA,

PETITIONER,

WILLIAM F. BOLGER, Postmaster General

UNITED STATES POSTAL SERVICE,

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

FORTUNATO C. RIVERA

Petitioner Pro Se

11621 Nearing Drive

Anaheim, California 92804-6745

Telephone: (714) 636-7785

WESTIONS PRESENTED FOR REVIEW

1. Whether the cancellation of a

Notice of Appeal to a statutory commis-—

sion mistakenly taken out from an invalid

azency decision operate to nullify the

exhaustion of administrative remedies

already undertaken on a second and con-

tinuing discrimination complaint where

the first claim was initially included

therein with the acquiescence of the

wuUgency?

2- Would the holding be different

it there is a valid agency decision?

3. In either case, is a party

bound to stay with the commission for

180 days as per 42 U.S.C. 2000e-16(c)?

4. Whether the Postal agency has

met its burden of proof in justifying

the repeated rejection of the petitioner

for promotion over the years.

5. wWhether the Lower court erred

in its findings of fact and conclusions

- One —-

of law?

5. Whether a Federal District Court

could ignor for any reason to pass judg-

ment on a Claim it has heard in a regular

trial? .

-. Two =

TABLE OF CONTENTS

Page

Parties to the proceedings ..... Ll

Omamaem BWOLOW «sce eee ceceees 2

Jurisdiction . « « «© «© «© « « «© «© ee 2

Stututes, regulations and constitu-

tional regulations involved ... 3

Title VII of the Civil Rights

Act of 1964, as amended,

42 USCA 2000e-16 .« « « « «© © © e« 3

Diserimination in kmployment

Act 1f 1967, as amended 29

USUA 633a . . . 7 . . . * . . . 3

29 Code of Federal Regulations . , 3

United’ States Constitution

Amendment V...«.«e«eeeeee 6

Statement of the case ..« « « «© e » 6

Reasons for granting the writ ... 12

I. Where a statutory regulation

outlines an investizative

and decisional rules to fol-

low, mandatory compliance

therewith is required. An

administrative investiga-—

tion and decision rendered

not in conformity therewith

do not resolve the issues

and controversies in the

complaint. Hence there is

no final decision to speak

of and no appeal could be

taken thereon. « «© « © ce © e Le

Iil.. The District Court's decision

which was affirmed and fur-

ther amplified by the Court

of Appeals conflicts with

all relevant prior judicial

interpretation and applica-

tion of the “continuing

discrimination" doctrine in

the exhaustion of adminis-—

Srmeave FeMeGdLes .-.« « « co « LA

III. The rules of law laid down

in Castro v. United States

775 F. 2d 399, 403-404 (let

Cir. 19385); Purtill v.

Harris, 658 F. 2d 134, 138

(3rd sie 71981): & Jordan

v. United States, 522 F.

2d 1128, 1132 (8th Cir.

1975), do not apply to

this cas@. e © e « e ° e

IV. The Postal agency has not met

its burden of proof in ar-

ticulating legitimate and

non-discriminatory reasons

for rejecting Rivera to all

the positions that he had

sought over the years. .. .»

V. The lower court ignored to

pass judgment on Rivera's

claims for promotion to

sunervisor under the Santa

Ana Craft Skills Bank and

Computer Mark-Up supervise:

sory selection procedures. .

Conclusion - .~. * . o . . * * ” + .

CASES:

Aikens v. U.S. Postal Service

23 FEP Cases 1142 (1980) ....

Brown v. General Services Admi-

nistration, 425 US 820, 12 FEP

1361 (1976) © . e °* e« e . a T»

Castro v. United States, 1715, F.

2a 399, 403-404 (ist Cir.

1985) . * + 7 o . + s 7 = . . 8,

Higgins v. State of Oklahoma,

25 FEP Cases 371, 372, (10th

Cir. 1931). * e @ * ee e . ¢ @

Jordan v. U. “ie 522 F, 2d 1128

2332 (66h Git. 29TS)}0 o 0.0 « Ge

Page

Lee v. Conecuh Vounty Board of

Education, Ala. 1981, 634 F.

2d 959. . e @ ° ° 2 * e e e o 8, 27

Olson v. Rembrandt Printing

Co., 511 F. 2d 1228, 1234

(8th Cir. 1975). « « « « « « 16, 19

Patterson v. American Tobacco

Co., CeAe Va. 1980, 634 F. ae

2d 744. o e o s -_ o a o * . 8, 18

Purtill v. Harris, 658 F. 2d

134, 138 (3rd Cir. 1981)... 8, 20

Reed v. Lockhead Aircraft Corp.

613 F. 2d 757, 759, 762

(9th Gir. 1960) «2s 220062 0 «6 2 8

Rich v. Martin Marietta Corp.

522 F. 2d 333, 348 (10th

Cir. 1975). a ey ee aay ee oe ae ee 8, 17

Texas Dept. of Community Af-

fairs v. Burdine, 450 US 248

(1981) * e . e . © e ° ° * e * 28

United Air Lines v. Evans

431 US $93 (ASTT)« «© © « « 0 0 « 16

Valentino v. U.S. Postal Ser-

vice, 674 F. 2d 56 (D.C.

Cir. 1982) « e o a ev a e o *

Wang v. Hoffman, 694 F. 2d 1146

(9th Cir. 1982) .... .8, 23, 27

APPENDICES

- 16

A -— Decision Opinion of the Court

of Appeals, 20 October 1987.

B —- Court of Appeals Order denying

Petitioner's request for re-

hearing with suggestion for re-

hearing en banc. 11 Jan. 1988,

C - U.S. District Court Judgment on

Case No. CV 82-5326 MPR

February 11, 1986.

C-2 The corresponding Findings of Fact

C~6 —~ and Conclusions of Law.

Februery 11, 1986.

- iii -.

Plaintiff's Notics of Motion

and Motion to Amend Pindings

of Pact and Ju ent, dated

24 February 1986.

U.S. District Court dudgment

on CV 82-2379 MRP, dated

February 11, 1986.

The corresponding Pindings of

Pact and Conclusions of Law

dated February ll, 1986.

Plaintiff's Notice of Motion

and Motion to Amend Pindings

of Pact and Judgment, dated

18 Pebruary 1986.

interpretive letter dated Sept-

ember 29, 1982, from the Di-

rector, Employee & Labor

Relations, United States

Post Office.

Interpretive letter dated Dec-

ember 22, 1981, from the Gen-

eral Manacer, ESO Appeals

Division, USPS, Washingon,

D.C..

Interpretive letter, plain- :

tiff's Notice of Appeal,

dated August 390, 1952.

Interpretive letter, plain-

tiff's notice to the ESOC

dated October 19, 1932,

that he was suing in Court

and therefore his Notice of

Appeal be cancelled.

Interpretive document, Part II

The Profile Assessment Sys-

tem for Supervisors (PASS).

42 USCA S. 2000e-16

Civil Rights Act.

29 USCA S. 633a

Age Discrimination in Enploy-

ment Act.

Interpretive USPS Qualification

Standard 0160.

Proof of Service by mail.

e iV «

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

NQ.

ee =

= : == 2 ed

FORTUNATO C. RIVERA,

PETITIONER,

WILLIAM F. BOLGER, Postmaster General

UNITED STATES POSTAL SERVICE,

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CERCUIT

The petitioner, Fortunato C. Rivera

(hereinafter Rivera), respectfully prays

that a writ of certiorari issue to review

the judgment of the United States Court

of Appeals for the Ninth Circuit entered

on 2) October 19387.

OPINION BELOY

The Court of Appeals entered its Opi-

nion decision on 20 October 1937 affirn-

ing the lower court that Rivera's repeat-e

ed rejection for promotion was for valid

reasons and that his 1978 and 1979 claims

for the position of E&O Investizator were

barred for failure to exhaust administra-

tive remedies. A copy of the opinion is

attached ns Appendix A.

The Court denied Rivera's petition

for rehearing with suggestion for rehear-

ing en banc on 1l January 1978. A copy

of the Order is attached as Appendix 3.

His request to argue his case was not al-

so granted.

JURISDICTION

The Opinion decision of the Court of

Appeals was entered on 20 October 1937

anu its Order denying Rivera's petition

for rehearing and rejecting his suggest—

tion for rehearing en banc was filed on

11 January 1988.

The jurisdiction of this Court is

invoked under Title 28, United States

Code, Section 1254(1). No other neti-

tioner is involved in this petition.

STATUTES, REGULATIONS AND CONSTITUTIONAL

ba A Oi 3 4 i

Ae Title VII of the Civil Rights

Act of 1964, as amended, 42 USCA 200V0e-

16, and the Age Discrimination in Employ-

ment Act (ADEA) of 1967, as amended, 29

USCA 633a, prohibit employers including

Federal agencies to discriminate against

their employees with respect to terms,

conditions or privileges of employment

because of their age, race, sex, or na-

tional origin, or because they have par-

ticipated in an ectivity protedted by

law.

B. 29 Code of Federal Regulations -

————— EEE

1. Section 1613.215 on rejection :

complaints:

"The head of the agency or his de=

signee may reject:-a-camplaint ‘which-

was not ‘timely filed and: shall:reject

those allegations in a complaint which

are not withih the purview of (Sec.) -

1613.212 or which set forth identical

matters as contained in a previous

complaint which is pending in the

agency or has been decided by the

agency."

2. Section 1613.216(a) on investi-

gation partly provides:

"The person assigned to investigate

the complaint shal.l occupy a position

in the agency which is not, directly

or indirectly, under the jurisdiction

of the head of that part of the agen-

cy in which the complaint arose."

3. Section 1613.221(a) - Decision

by head of agency or designee;

"The head of the agency, or his de-

Signee, shall make the decision of the

agency on a complaint based on infor-

mation in the complaint file. A per-

son designated to make the decision ‘::

for the head of the agency shall be

one who is fair, impartial, and ob-

jective."

4. 1613.233(a) Re: Appeal to the

Commission. Time limits:

". 6 « « & Complainant may file a

a ee ct eee ee ee ee Pa

ciate ied tee nk Ed a ie ee ee a

notice of appeal at any time up to 20

calendar days after receipt of the

agency's notice of final decision on

his or her complaint. .... « Any

statement or brief in support of the

appeal must be submitted to the Com-

mission and to the defendant agency

within 30 calendar days of filing the

notice of appeal. For purposes of

this Part, the decision of an agency

shall be final only when the agency

makes a determination on all of the

issues in the complaint."

5. Section 1613.281. Statutory

Right:

"An employee or applicant is autho-

rized by Section 717(c) of the Civil

Rights Act, as amended, 84 Stat. 112

to file a civil action in an appro-

priate United States district court:

(a) Within Thirty (30) calendar

days of the receipt of notice of final

action taken by the agency .'on the

complaint. ' ;

tb) After one nunawed and eighty

(ass) calendar days from the date of

filing a complaint with the agency if

there has been no decision,

days after receipt of final action

taken by the Commission on the coin-

plaint, or

(ad) After one hundred and eighty

(180) calendar days from the date of

filing an appeal with the Commission

if there has been no Commission deci-

sion."

For purposes of this Part, the deci-

sion of an agency shall be final only

when the agency makes a determation

on all of the issues in the complaint."

Cc. ‘United States Constitution -

—_

Amendment V:

"No person shall. ...- hae de=

priveed of life, liberty, or property,

without due process of law... .

STATEMENT OF THE CASE

There are two lower court decisions

involved in this petition in two suits

under Title VII of the Civil Rights Act

of 1964, as amended, 42 USCA 2000e-16 and

ADEA, as amended, 29 USCA 633a. Copies

of the judgnents, findings of fact and

conclusions of law and Rivera's opposi-

tion papers are attached as Appendix C

to C-28.

Rivera claims that he was discrimi-

nated against by the Postal agency over

a long period of time because of his age

(then "50 plus"), race (oriental brown),

national origin (Filipino), and because

he has filed complaints against his

officials.

After a joint trial, the lower court

held that Rivera failed to exhaust his >

administrative remedies on his 1978 and

1979 claims for EEO Investigator.

Browm v. General Services Administra-

tion, 425 US 820, 12 FEP 1361 (1976).

42 USC 2000e-16(c); that he was less

qualified than the applicants who were

selected for a similar position in 1980;

and that he failed to qualify for super-

visor under the old system and PASS se-

lection procedures from 1977 to 1980.

The court failed to pass upon Rive-

ra‘'s claims for supervisor under the .

Santa Ana Craft Skills Bank and Compu-

ter Mark-Up Supervisor selection proce-—

' dures also in 1977-1980 although they

were also tried with the other claims.

j The Court of Appeals ignored to pass

judgment on the same claims:

The lower court ignored Rivera's

position on "continuing discrimination"

that affords him a remedy for past

ae |

discrimination, "disparate impact" and

"subjective evaluation". Rich v. Martin

Marietta Corp., 522 F. 2d 333, 348 (10th

Cir. 1975); Reed v. Lockhead Aircraft

1980); Higgins v. State of Oklahoma, 25

FEP Cases 371, 372, (10th Cir. 1981);

Patterson v. American Tobacco Co., C.A.

Va. 1980, 634 F. 2d 744; etc. and Wang

v. Hoffman, 694 F. 2d 1146 (9th Cir.

1982); Lee v. Conecuh County Board of

Educ., Ala. 1981, 634 F. 2d 959; etc.

On appeal, the two cases were con-

solidated end the Court of Appeals af-

firmed the lower court. It held that

Rivera's request to cancel his Notice

of Appeal amounted to abandoning his

Claim, hence failing to exhaust his ad-

ministrative remedies. Castro v. United

States, 775 F. 2d 399, 403-404 (lst Cir

1935); artill v. Harris, 658 F. 2a 134

133 (3rd Cir. 1981); Jordan v. U.'S.:

522 F. 2d 1128, 1132 (8th Cir. 1975).

Rivera who is challenging his em: -

ployer's promotional policies, systems

and practices, is a U.S. citizen of Fi-

lipino origin and is now 64 yeurs of age.

He is a holder of B.S. and M.A. degrees

in #ducation and is also a Bachelor of

Arts and Bachelor of Laws. He has been

a part-time college instructor, an of-'.:

fice supervisor and a government super-

visor of private schools, among others.

He joined the Postal Service in Santa .

Ana on June 16, 1976, as a casual clerk-

! carrier and became a permanent-—career °

clerk on November 23, 1976. He has been

working as such until the present tine.

Ile has earned three certificates in Post-

al Management and Customer Service and

has met the requirement of the Western

Regional PASS Training Program in effect

Leia easel as

in 1980. (Appendix D)

Rivera had consistently «end was

repeatedly rejected for promotion to. EEO

Investigator in 1978, 1979 and 1980 and

to supervisor from 1977 to 1980 under

four different supervisory selection pro-

cedures in the same four-year period.

Rivera did not file a complaint af-

ter he was rejected for investigator in

1978 because he was encouraged by the

agency to apply for future vacancies °

which he did in 1979 and 1980, but wag

also rejected. He filed his first con-

plaint after his rejection in 1979.

While this complaint was being processed

by the Western Regional EEO Branch, the

discriminating office against whom the

complaint was filed, Rivera was again

rejected for the 1989 vecency. He then

consolidated all his 1978, 1979 and 1930

claims into 2 single complaint and filed

it with the same office on May 18, 1981,

under the doctrine of "continuing discri-

mination". The same complaint was

accepted and no part of it was ever re-

jected as per 29 CFR 1613.215, supra.

On December 22, 1981, the headquars

ters EEO Appeals Division of the Postal

Service in Washington, D.C., had deter-

mined that the SEO Branch had erroneous-

ly processed the said complaints. Ao«>":

cordingly, it immediately assumed juris-

diction over the two complaints. (Pls.

see Appendix & Ironically, the first

complaint was decided on August 16, .'>.:

1982, by the agency solely on the basis

of the investigative report submitted by

the GEO Branch, the discriminating of+#ic»

fice.

Rivera was then forced to file a

Notice of Appeal with the Commission, but

was never perfected with the required

brief. On October 10, 1982, he request-

ed for its cancellation after he had de-

termined that the agency had not indeed

rendered a final and appellable decision

os “P r A

and that he had already decided to sue

in court. (See Appendix F & G).

After about sixteen (16) months

since his second complaint was filed on

May 18, 1931 and without the agency ren-

dering its final decision or rejecting

any part of it, Rivera sued in court on

October 14, 1982, under the doctrine of

“continuing discrimination".

In spite of this situation, the

Commission rendered its unwanted deci-

sion on April 21, 1983, on the basis of

the self-serving report submitted by the

EEO Branch.

REASONS FOR GRANTING PHE WRIT ©

1. Where a statutory regulation

outlines an investigative and decisional

rules to follow, mandatory complinnce

therewith is required. An administra-

tive investigation and decision rendered

not in conformity therewith do not rekwe -

solve the issues and controversies in

the complaint. Hence, there is no final

decision to speak of and no appeal could

be taken thereon.

The reasons are very obvious. i. e.

No Federal official will ever prepare an

adverse report against his Office and no

Federul agency will ever render an ad»

verse decision against itself.

The statutory regulations (CFR,

supra) have been designed to protect

complainant-oemployees from unscrupulous

discriminatory practices of their em=: -

ployers.

In view of the flagrant disregard

or defiance of the said regulations in

the handling of the complaint by the

280 Branch, the very office against whom

it wes 7iled, the Postal agency has not

indeed rendered a final, binding and ap-

pealable decision von Rivera's 1979 com-

plaint. Consequently, the Commission

hes never acquired jurisdiction over the

case. The least it could have done was

to dismiss the case for the same cause.

Therefore, the complaint remained

undecided by the agency after 180 days

days from the date it was filed and

therefore rined for court action. 50,

it could have been futils for Rivera to

have stayed with the Commission for 180

days before he sued in court.

II. The District Court's decision

which was affirmed and further amplified

by the Court of Appeals conflict: with

all releviwt prior judicial interpreta

tion and application of * "continuing

discrimination" doctrine in ti. exheus-

--e—

tion of adwinistrative Pemeadis ie

It is a-settled general rule of law

thet a Federal employee filing a Title

VII and ADEA claims must first exhaust

his administrative renedies befcre suing

in court, otherwise his claim is barred

by statute of limitations. Brown ve. G.3.A.

42 USC 2000e-16(c), supra.

The doctrine of "continuing discri-

mination" is an exception to the above

rule because it affords a remedy to past

discrimination. (see cases below).

Brown was not pursuing a continuing

discrimination complaint. He sued in

court 12 days beyond the 30-day Linita-

tion from the time the Commission had

decided his case against him. On the

other hand, Rivera has properly exhausted

his administrative remedies thru an open

avenue most favorable to him by consoli+

dating all his 1978, 1979 and 1980 claims

into a single complaint and then sued in

court within the time limitation.

Although the agency was impowered to

to reject the consolidated complaint or

any allegations therein or because it set

forth identical matters contained in |

Rivera's first complaint which was then

pending with the agency, it never attempted

to exercise such power as per 29 CFR

1613.215 (supra). By way of estoppel,

it was too late for the agency to oppose

such claims for the first time in the

lower court.

Where a plaintiff is not complaining

of a discrete act of discrimination, the

doctrine of continuing discrimination may

except him/her from the strict time re-

quirement of Title VII in order to pro». -°

vide remedy for past actions which ope-

rate to discriminate against the complain-

ant at the present time. Qlson v. Rem-:

brandt Printing Co., 511 F. 2d 1228, 1234

(8th Cir. 1975). To demonstrate a conti-

nuing violation, a pleintiff must show a

series of related acts, one or more of -

which falls within the limitations period.

Valentino v. U.S. Postal Service, 674 F.2q4.

56 (D.C. Cir. 1982). The complainant must

allege a present effect of past discrimi-

nation. United Air Lines v. Evans, 431

U.S. 553 (1977).

Rivera is not complaining of a dis-

crete act of discrimination. Records

show that he has been repeatedly rejected

for promotion to EEO Investigator three

times and supervisor four times all from

1977 to 1980.

Courts held that as long as the plain-

tiff is alleging non-promotion over a per-

iod of time, the discriminatory failure

to promote such employee constitutes a

continuing violation for purposes of fil-

ing a complaint under Title VII. Rich v.

Marietta, etc. supra.

The time limitation in filing a com-

plaint is inconsequential in action chal-

lenging employer's entire promotion system

or continuing discriminatory practices.

Tbid.).

Where employer's promotional poli-

cies were found to involved a pattern of

practice of discrimination looking i.

i SI) |

minorities into less favorable job posi-

tions the effects constituted continuing

violation of law and claims related

thereto were :noti' barred by failure to

have challenged the promotional policies

at enception. Patterson v. American To-

bacco, supra.

Records show tha’ as of 1980 no en-

ployee of Filipino origin has ever been

promoted to the kind of position that

Rivera had sodught.! This. was never: contro

verted by the Postal. agency.

III. The rules of law laid down in

Castro v. United States, 775 F. 2d 399

403-404 (1st Cir. 19385); Purtill v. Har»

ris, 658 F. 24 134, 138 (3rd Cir. 1981);

and Jordan v. United Stetes, 522 F. 2d

1128, 1132 (8th Cir. 1975), do not apply

to this case.

Castro v. U.S. Castro and Diaz sue

in court with their Title VII and ADEA

Claims against the F.D.1.C.. Castro

never contacted an EEO Counselor nor $i:

filed a formal complaint with the FDIC,...

hence he failed to exhaust his adminis-

trative remedies. Diaz has initiated

administrative proceedings in his ADEA

Claim with the MSPB and with the agénoy's

EEO: Office. The EEO:Office soon cane”!’:2

celled his complaint on account of his

appeal with the MSPB which was filed ear-

lier without counselling. Soon there-

after he had withdrawn his MSPB appeal

with no indication that he has pursued

further administrative relief before he

sued in court. The court held that Diaz

failed to exhaust his administrative re-

medies.

Unlike Rivera who is pursuing a con-

tinuing discrimination claim, Castro and

Diaz were complaining of a single act

where they could not escape the strict

requirement of Title VII. (Olson, supra).

On the other hand, Rivera has

cancelled his Notice of Appeal with the

Commission for a lawful cause and that

he exhausted his administrative remedies

thru an open avenue most favorable to him.

Purtill v. Harris = Purtill sued in

court before the Commission took final

action on his. ADEA complaints, hence he

failed to exhaust his administrative re-

medies in spite of his assertion that 130

days had already lapsed since he ini*i° |

tiated administrative proceedings.

Rivera's Situation is different.

The agency decision was not valid and the

Commission never acquired jurisdiction

over the case. &n -fectihis:1978 and ~»-

1979 claims were already included in his

second complaint that had officially

passed the proper channels of adminis-—

trative remedies. The consolidation of

all his 1978, 1979 and 1980 claims into

a single complaint had nicely simplified

the whole proceedings for the benefit of

all parties concerned as well as the

court.

If it is taken for granted that

there was a valid agency decision, Jiv01;.':

Rivera's ADEA claim would still survive

the fact that the Commission was proper-

ly notified before he sued in court as-::':

per 29 USCA 633a(d).

Jordan v. U.S. — Jordan's failure to

cooperate caused the Cemmission to cancel

his complaint. This was not the case of

Rivera as he had properly exhausted his

administrative remedies thru an open route

most favorable to him. He was not bound

per 42 U.S.C. 2000e-16(c) to stay with

the Commission for 180 days before he

could sue in court.

The unfamiliar decision of the Com-

mission is arbitrary, confescatory and

violative of Rivera's right under the

Fifth Amendmen;.

IV. The Postal agency has not met

its burden of proof in articulating legi-

timate and non-discriminatory reasons for

rejecting Rivera to all the positions

that he had sought over the years.

EEO Investigator Position —- Prepon-

derance of evidence show that Rivere was

the only applicant with a combination of

Master's Degree in Education and Bachelor

of Laws with creditable experiences in

supervision, investigation, hearing of

complaints, arbitration, and mediation,

among others. Rivera's Trial Exhibits

Nos. 52 to 52c, USPS Qualification Stan-

dards No. 0160, allows the substitution

of experience with a degree at a rate of

9 months for every academic year of educ-

ation up to a maximum of 36 months. With

this, Rivera's 36 months of credit exper-

ience is more than enough to offset the

light to moderate EEO counselling exper-

iences of the candidates who were said to

be more qualified than Rivera. The agency

23 -

has never articulated any legitimate and

non-discriminatory reasons why the «sé=«. -

lecting officials had given more credit

to Postal Service EEO experience than the

required skills in investigation and rthe

readiness to assume the role of arbitra-

tor, mediator and hearing officer which

Rivera possessed. The agency had not gi-

ven any reason why Rivera was denied ind:

terview in the 1979 and 1980 positions,

while he was interviewed for the 1978 va-

cancy and at a time when he had not as

yet filed any complaint against the Pos-

tal management.

With the prevailing situation, #i. >

Rivera is not even required to prove

that he was the best qualified applicant

for all the positions that he had sought.

Wang v. Hoffman, 694 F.. 2d 1146 (9th Cir.

1982). If Rivera was not the best qua-

Lified applicant (arguendo), at least he

was one if not the best deserving

applicant for promotion in a functional

affirmative action program.

Supervisor Position -— The Postal

agency had not articulated any legitimate

and non-discriminatory reasons for the

following management actions:

1. Why Rivera was subjected to the

so-Called 204-B supervisory training when

this was not required in the PASS select-

tion procedure (see Appendix H) and then

evaluated as not qualified to become a

supervisor by the very discriminating

officials only after seventy (70) days

when the said training was ended and at

the time when he had already filed a com-

plaint against the management.

2. The legitimacy of the frequent

changes and use of four different super-

visory selection procedures in so short

a time, 1977-1980, has never been justi-

fied by the management. This and the

above practices had adverse impact on

toes

the class that Rivera belongs.

3. There is no concrete evidence

to show that the PASS selection procedure

was introduced on April 1, 1978. Records

show that PASS work-books and answer-.

sheets were distributed to applicants on

April 10, 1978 and successful candidates

received their eligibilities only in

March and April of 1979. Records also

show that Rivera reached his 14 years of

Postal service on April 3, 1978.

4. Granting (nrguendo) that the

PASS selection was introduced on April l,

1978, which, as claimed by the management

also marked the end of the old selection

procedure. What must be the reason why

such change was made at a time when

Rivera needed only a couple of days to

complete his 14 years of service and also

considering the fact that this require«c

ment had been reduced to only one year

under the PASS selection procedure?

5. Aside from his assests for EEO

Investigator, Rivera was the only appli-

cant for supervisor with: (a) a Master's

Degree in Education major in Administra-

tion and Supervision, (b) three certifi-

cates in Postal Maneagemand and Customer

Service, and (c) with several years of

teaching, supervisory and leadership ex-

periences. With th@se, it sounds ironi-

Cally oppressive to just brand him as

not qualified to become a Postal Super-

visor, a position he was well prepared

to assume.

In line with the case of Aikens v.

U. S. Postal Service, 23 FEP Cases 1142

(1980) Rivera has clearly demonstrated

that he was qualified to become a super-

visor in view of his education, exper-

iences and Postal achievements. oe

The use of subjective criteria in

the selection system is not enough of

itself to violate Title VII, but courts

bare ece nese

have expressed concern over the use of

subjective criteria when there is evi-

dence that criteria furthered bias or

discriminatory classification. (see Wang

supra).

Establishing qualification is an

employer's prerogative, but an employer

may not utilize wholly subjective stand-

ards by which to judge its employees’

qualifications and then plead lack of

qualification when its promotion process

is challenged as discriminatory. Lee v.

-Conecuh County Board of Educ. 634 F. 2d

959. (Ala. 1981).

From the factual situations and le-

gal standards presented, it appears that

the agency had no definite and objective

criteria in the selection of its employ-

ees for promotion. Its practices though

neutral on its face have adverse impact

on Rivera and his class as evidenced by

the statistical disparities in promotion

mentioned ahead. The Postal agency has

not justified the legitimacy of its pro-

motional policies and practices that had

biased Rivera and deprived him of his em-

ployment rights protected by law. The

agency's profferred explanation in re-

jecting Rivera for all the promotions

that he had sought are not legitimate

and non-discriminatory, hence unworthy

of credence. (See Texas Dept. of Commu-

nity Affairs v. Burdine. 450 US 248

(1981). The agency's reasons are just

pretexts to cover-up the discrimination

and retaliation that had been perpetrat-

ed and perpetuated against Rivera over

the years.

V. The lower court ignored to pass

judgment on Rivera's claims for promotion

to supervisor under the Santa Ana Craft

Skills Bank and Computer Mark-Up super-

visory selection procedures.

These claims were also tried with

the other claims. Rivera's insistence

for a judgment on these claims was

ignored by the lower court.

CONCLUSION

For the foregoing reasons

petitioner Fortunato C. Rivera most

respectfully requests that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals

for the Ninth Gircuit.

DATED: whi) $ th day of March, 1988.

Anaheim, California 92804-

Telephone: (714) 636-778

In Propria Persona

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

“ae A>, eRe

‘3 P

Fortunato C, RIVERA,

Plaintif}/-Appellant, Mo. peta

‘ a‘ D.C: No.

: CV 82-2379-MRP

UnNrrep STATES PosTAL SERVICE,

Defendant-Appellee.

—

Fortunato C. RIVERA, ne

HaintiffAppe

Plaintif/-Appellant, No. 86-6607

a 1).C. No.

Wittiam F. BoLGer, Postmaster j CV-82-5326

General, UNITED STATES POSTAL OPINION

SERVICE,

Defendants-Appellees.

—

Submitted August 12, 1987*

Filed October 20, 1987

Before: J. Blaine Anderson, Harry Pregerson and

John T. Noonan, Jr., Circuit Judges.

Opinion by Judge Noonan

Appeal from the United States District Court

for the Central District of California

Mariana R. Pfaelzer, District Judge, Presiding

*The panel finds this case appropriate for submission without oral argu-

ment pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a).

Ap p endisx A

Rivera Vv. UNITED STATES

SUMMARY ;

Administrative Law :

Appeal from judgment. Affirmed.

Appellant Rivera in 1978, 1979, and 1980 applied to the

Postal Service for promotion. Each time other applicants

were selected. He filed an administrative complaint as to his

1979 rejection. He received an adverse ruling. He appealed to

the Equal Employment Opportunity Commission (EEOC).

Shortly thereafter, he requested the EEOC to “cancel” his

notice of appeal and filed suit with the district court. The

EEOC upheld the Postal Service. Rivera did not think it nec-

essary to file a new appeal to the district court and relied on

his earlier filing. He also mad in administrative complaint

as to the 1980 rejection. He also sued the Postal Service for

failing to promote him in 1978 and in 1979.

[1] Rivera’s 1978 claim is barred by failure to exhaust his

administrative remedies. [2] Once a party appeals to a statu-

tory agency the appeal must be “exhausted.” To withdraw is

to fail to exhaust one’s remedies.

COUNSEL

Fortunato C. Rivera, Anaheim, California, for the plaintiff-

appellant.

James A. Friedman, Washington, D.C., for the defendant-

appellee.

Appendix A-1

Rivera v. UNiteED Starts 3

OPINION

NOONAN, Circuit Judge:

Fortunato C. Rivera appeals from two district court judg-

ments against him in two separate Title VIL and age discrimi-

nation cases against the United States Postal Service. We

consolidate the cases and allirm the district court.

FACTS

Fortunato C. Rivera is a United States citizen of Filipino

ancestry, now 63-years-old. He is the holder of B.S. and M.A.

degrees in education and is also a Bachelor of Arts. He has

been a part-time college instructor, a government supervisor

of private schools, an oflice supervisor, and a senior clerk. He

has three certificates in Postal Management and Customer

Service, and was a candidate in the Profile Assessment Sys-

tem for Supervisor. On three separate occasions, in 1978,

1979, and 1980, he applied to the Postal Service for promo-

tion to Equal Employment Opportunity Investigator. Each

time other applicants were selected in his place.

Rivera did not file an administrative complaint as to his

non-selection in 1978. He did file such a complaint as to his

1979 rejection and after the Postal Service ruled against him,

he timely appealed on August 30, 1982 to the Equal Employ-

ment Opportunity Commission (EEOC). On October 10,

1982, he wrote the EEOC requesting “cancellation” of his

notice of appeal. He then filed suit with the district court. The

EEOC, by decision of April 21, 1983, upheld the Postal Ser-

vice. Rivera did not think it necessary within 30 days to file

a new appeal to the district court and relied on his earlier fil-

ing. Rivera also made an administrative complaint as to the

1980 rejection and after the complaint was rejected by the

Postal Service he timely brought suit in the district court: he

also sued the Postal Service for discrimination in failing to

promote him in 1978, and in 1979.

Appendix A~2

Rivers v. UNitep States

’=s

In addition, Rivera applied in 1980 for promotion to a

supervisory position in the Postal Service and was rejected

from the training program. He filed an administrative com-

plaint which was rejected and from this rejection he timely

filed suit in the district court.

ANALYSIS

11} Unfortunately Rivera’s 1978 claim is barred by an inex-

orable rule: failure to exhaust his administrative remedies. 42

U.S.C. § 2000e-16(c). His twin claims for 1980 were tried on

the merits to the district court. To overturn the district court,

Rivera must show that the court was clearly erroneous in its

finding of fact. This showing he has failed to make.

‘The meat of Rivera’s appeal consists of an issue relating to

his 1979 case not vet decided by this circuit. He had appealed

to the EEOC from the Postal Service's decision. Within two

months he had withdrawn this appeal by “cancellation.” Did

the withdrawal open the way to the district court, a path he

might have followed initially if he had not first chosen the

EEOC route, or was he bound, per 42 U.S.C. § 2000e-16(c),

for 180 days to stay with the EEOC?

2] The answer to this question is not entirely obvious.

Again the path of the law laid out by other circuits 1s contrary

to Rivera’s position. The view has been taken that once a

party appeals to a statutory agency. board or commissio.1, the

appeal must be “exhausted.” To withdraw is to abandon one’s

claim. to fail to exhaust one’s remedies. Impatience with the

agency does not justify immediate resort to the courts. See

Castro v. United States, 775 F.2d 399, 403-404 (Ist Cir.

1985S). Purtill v. Harris, 658 F.2d 134, 138 (3rd Cir. 1981):

Jordan v. United States, §22 F.2d 1128. 1132 (8th Cir. 1978).

We think this rule is sound. it means in the 1979 case that

Rivera was not free to hile in the district court until the ELOC

Appendix h-3

RIVERA v. Uniten States 5

ruled on April 21, 1983, He then failed to mect the statutory

deadline,

AFFIRMED.

Appendix A-4

= *

yur

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

—— |

parE:

}Jan.11,1988 } ~—

FORTUNATO C. RIVERA,

Plaintiff-Appellant, No. 86-6589

VS. DC# CV 82-2379

MRP

UNITED STATES POSTAL

SERVICE,

Defendant-Appellee.

FORTUNATO C. RIVERA,

Plaintiff-Appellant,

No. 86-6607

Vs. DC# CV—82-5326

WILLIAM F. BOLGER, Post-

master General, UNITED

STATES POSTAL SERVICE,

Defendants—Appellees.

ee re Meee ee See ee me ee eet ee gl cee et ae ce ag

Before: ANDERSON, PREGERSON, AND NOONAN,

Circuit Judges

The panel as constituted in the above

case has voted to deny the petition for

rehearing and to reject the suggestion

for rehearing en banc.

Appendix B

The full court has been advised of

the suggestion for en banc rehearing, and

no judge of the court has requested a vote

on the suggestion for rehearing en banc.

Fed. Re. App. Pe. 35(b).

The petition for rehearing is denied,

and the suggestion for a rehearing en

banc is rejected.

Appendix B-l

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

"Feb 14,1986" "Feb 13,1986°

FORTUNATO C. RIVERA,

Plaintiff, ) CASE NO.

master General, United JUDGMENT

States Postal Service,

Defendant.

This case came on regularly for trial

on May 15, 1984. The plaintiff appeared

pro se. The defendant was represented by

Ronald K. Silver, Assistant United States

Attorney.

The Court having heard the testimony

of witnesses and the arguments of counsel,

having reviewed all materials and exhibits

filed in this case, and having entered its

Findings of Fact and Conclusions of Law con-

currently herewith.

Appendix C

eerie emma

If IS ORDERED, ADJUDGED AND DEUREED

that judgment shall be entered in favor of

the defendant against the plaintiff.

DATED: February ll, 1986

s/Hariene R. Pfaelzer

Triana R. aelzer

United States District Judge

Appendix U-1

FINDINGS OF FACT

1. Plaintiff applied for the position

of ad hoc EEO investigator with the United

States Postal Service in 1975.

2. Plaintiff was not selected for

this position. |

3. Plaintiff was aware of his right

to pursue a complaint of discrimination,

but chose not to do so.

4. Plaintiff applied for the position

of EEO investigator under Vacancy Announce-

ment No. 328 in 1979.

5. Plaintiff was not selected for

this position.

6. Plaintiff filed a formal complaint

as a result of his non-selection in 1979.

7. Plaintiff's complaint was denied

in a final agency action dated August 16,

1982.

8. Plaintiff timely filed his appeal

with the Equal Employment Opportunity Com-

mission ("EEOC") within twenty days of

Appendix C-2

receipt of the final agency action.

9. Plaintiff applied for the position

of EEO investigator under Vacancy Announce-

ment No. 514 in 1980.

10. Plaintiff was not selected for

this position.

ll. Plaintiff filed a formal conm=- .

plaint as a result of this non-selection.

12. Plaintiff's complaint was denied

in a final agency wetton.

13. Plaintiff timely filed this com-

plaint in the United States District Court

on October 14, 1982. At that time, the

EEOC was still investigating plaintiff's

complaint of discrimination under Vacancy

Announcement No. 328.

| 14. ‘the EKOU reached its decision

upholding the United States Postal Service

as to Vacancy Announcement No. 328 on April

21, 1983.

15. The plaintiff did not file a new

action in the United States District Court

Appendix U-3

within thirty days of the decision by ©

the EEOC.

16. Victor Okon, Kellsey Minor

and Francine Needles served as the se-

lection committee to review all applica-

tions under Vacancy Announcement No. 514.

It was their regponsibility to review

the more than 100 applications and to

select six names to be forwarded to fi-

nal selection.

17. The review process consisted

of each of the three selectors first re-

viewing each application and initially

eliminating those who were obviously

not qualified.

18. After this initial elimination,

further selection rounds were made to

narrow the number of applicants.

19. The three members of the se-

lection committee were searching for de-

monstrated ability in writing and com-

munication skills and the ability to

Appendix C-4

handle EEO type problems.

20. Plaintiff's application sur+

vived several rounds and was only re-

jected near the end of the selection

process.

21. ‘the reviewers, although be-

lieving plaintiff to be qualified for

the job, found that the people chosen

for the final round were better qguali-

fied for the job.

22. No one of the three reviewers

rejected plaintiff's application on the

basis of his national origin or age.

23. ‘The testimony of the review-

ers was credible.

. 24. Plaintiff was qualified for

: the position, but not as well qualified

, as those persons chosen for the final

round.

25. ‘The defendant has articulated

ae Sa

a non-discriminatory reason for the

failure to select plaintiff for the

Appendix U=-5

position of EEO investigator.

26. Plaintiff has not demonstrated

that this non-discriminatory reason was

a mere pretext.

27- Any Conclusion of Law deemed —

to be a Finding of Fact is hereby incor-

porated into these Findings of Fact.

CONCLUSIONS OF LAW

1. This is an action for employ-

ment discrimination brought pursuant to

the Civil Rights Act of 1964, as amended

42 U.S.C. S 2000e-16, and the Age Dis-

crimination and Enployment Act of 1967,

29 U.S.C. S 622 et seq.

2. Because of plaintiff's failure

to file a complaint with respect to his

non-selection in 1978 for the position

of ad hoc EEO investigator, he has failed

to exhaust his administrative remedies

and this Court lacks jurisdiction over

this issue. 42 U.S.C. S 2000e-16(c);

Brown v. General Services Administration

Appendix C-6

425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed.

2d 402 (1976).

3. After the United States Postal

Service's final agency action denying

plaintiff's claim of discrimination,

for the position of EKO investigator

for Vacancy Announcement No. 328, the

plaintiff could either bring an action

before the EEOC or the United States

District Court. He could not do both

simultaneously. Brovm v. General Ser-

vices Administration, supra.

4. By choosing to file with the EKOC,

the plaintiff was required to wait 180

days from the date of filing his appeal

to the ESOC, if no decision was forth-

coming, before he could file his ac-

tion in the district court. 42 U.5S.C.

S 2000e-16(c).

5. Therefore, plaintiff's com

plaint in the district court. for dis-

crimination over Vacancy Announcement

Appendix C-7

No. 514, filed within i80 days of plain-

tiff's complaint with the EEOC, could

not also include the issue of Vacancy

Announcement No. 328.

6. Plaintiff's failure to file a

new complaint in the district court

within thirty days of the EEOC's deci-

sion in the case of Vacancy Announcement

No. 328 deprives this Court of jurisdic-

tion to decide this issue.

7. ‘Therefore, trial in this mat-—

ter concerned only the issue of Vacancy

No. 514.

8. Plaintiff bears the burden of

establishing a prima facie case of dis-

crimination. McDonnell Douglas v. Green

411 U.S. 792, 802 (1973).

9. In order to establish a prima

facie case, the plaintiff must estab—

lish that (1) he belongs to a protected

class; (2) that he applied for and was

qualified for a position for which the

Appendix C-8

employer was seeking applicants; (3)

despite his qualifications, plaintiff

was rejected; and (4) after plaintiff's

rejection, the position either remained

open or was filled by a person outside

the protected class. Once plaintiff

has established this prima facie case,

the burden then shifts to the defendant

to demonstrate that the failure to hire

plaintiff was for a non-discriminatory

reason. If the defendant establishes

its burden, the burden then shifts once

more to the plaintiff to demonstrate’

that the defendant's reason was merely

a pretest. McDonnell Douglas v. Greon

411 U.S. 792, 802 (1973).

10. The defendant has demonstrated

that the plaintiff's failure to be se-

lected for the EEO Investigator posi-

tion was for non-discriminatory reasons.

ll. Any Finding of Fact deemed to

Appendix C-9

be a Conclusion of Law is hereby inocor-

porated into these Conclusions of Law.

DATED February 11, 1986

S/yarians Re Pfaelzer

ariana R. Praelzer

United States District Judge

Appendix C-10

—_

FORTUNATO C. RIVERA

11621 NEARING DRIVE

ANAHEIM, CALIFORNIA 92804

TELEPHON#: (714) 636-7785

IN PROPRIA PERSONA

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

FORTUNATO C. RIVERA, NO. OV

82-5326 MRP (Gx)

NOTICE OF MO-=

Plaintiff, ;

WILLIAM F. BOLGE, 4 TION: AND MO-

master General, United

States Postal Service, TION TO AMEND

Defendant. FINDINGS OF

FACT AND JUDG-

MENT

Dates: March 24, 1986

Time: 10:00 A. M.

NOTICE OF MOTION

To the Defendant and his Attorneys of

Record:

ROBERT C. BOONER, United States Attorney

FREDERICK M. BROSIO, JR, Asst. US Atty.

Chief, Civil Division

Appendix D

RONALD K. SILVER, Assistant U.S. Attorney

1100 United States Courthouse

312 North Spring Street

Los Angeles, California 90012

Greetings:

PLEASE TAKE NOTICE that on the date

and time set forth above, the Plaintiff

will bring on for hearing the following

Motion to Amend Findings of Fact and

Judgment before the Honorable Mariana R.

Pfaelzer, United States District Judge

at Room 15, United States District Court-

house, 312 North Spring Street, Los An-

geles, California 90012.

MOTION TO AMEND FINDINGS

OF FACT AND JUDGMENT

Pursuant to Rules 52(b) and 59(e)

of the #3deral Rules of Civil Procedure,

Plaintiff hereby most respectfully moves

this Court to amend its Findings of Fact

and the corresponding Judgment in order

to correct the errors which are so ad-

verse to him.

Appendix D-1

This motion is based and supported

by the following Memorandum of Points

and Authorities as well as the entire

case file.

MEMORANDUM OF POINTS AND AUTHORITIES

1. The Judgment and Findings of

Fact which appear to have been filed and

entered on February 13 and 14, 1986, res—

pectively, were received by the Plains:. ‘'’

tiff without the corresponding notice of

entry and certificate of mailing on Feb-

ruary 21, 1986, in the afternoon. The

Plaintiff has no way of knowing when

they were mailed by the Clerk of Court.

2. There is no issue. that the ,

Plaintiff belongs to a protected group,

all as to age (now 62), race (oriental

brown) and national origin (Philippines).

3. There is ulso no issue that he

applied and was found to be qualified

for the position of EEO Investigator by

the ‘committee of the Postal agency.

Appendix D-2

4. Likewise, there is no issue that

he was rejected for the positions that he

had sought and that other applicants not

belonging to his age and minority groups

were selected in stead of him.

5. The Findings of Pact and Judg-

ment has brought about the following is-

sues to be resolved, inter alia:

a) Whether the Plaintiff has pro-

perly exhausted his administrative re-

medies by consolidating his 1978, 1979

and 1980 claims into a single complaint

filed in the United States District

Court on October 14, 1982;

b) Whether the Plaintiff is less

qualified than the other candidates who

were selected for the positions that he

had sought; and

c) Whether the Plaintiff bears the

burden of proving that he is more qua-

lified for the job than the candidates

who were selected.

Appendix D-3

6. The Pindingsg of Fact and Judg-.

ment sought to be amended or altered -

failed to note the following factual cir-

cunstances and legal standards justify-

ing the proper exercise of administrative

remedies:

a) Plaintiff did not file a com-

plaint upon his rejection for Ad-Hoc EEO

Investigator in 1978 because the EEO

Branch Manager of the Postel agency ad-

vised him to continue applying for fu-

ture vacancieg which the Plaintiff did

at a later date.

b) Plaintiff did not waive his -" *:'

right to file a discrimination complaint.

He knew that a continuing act of discri-

mination could be pursued at a later date

without any lapse of time.

c) In the case of Rich v. Martin

Marieta Corp. 522 F 2d 333, 348, 11 FEP

Cases 211 (10th Cir. 1975), reiterated

in Higgins v. State of Oklahoma, 25 FEP

Appendix D—4

Cases 371, 372 (10th Cir. 1981) the

Court held that so long as the Plaintiff

is alleging non-proiotion for a period

of time, the discriminatory failure to

promote such employee constitutes e con-

tinuing violation for purposes of filing

a complaint under Title VII of the Civil

Rights Act of 1964, as amended.

ad) where employer's promotional po-

licies were found to involved a patter

or practice of discrimination locking mi-

nority and women employees into less fa-

vorable job positions the effect consti-

tuted continuing violation of law and

claims related to those violations were

not barred by failure to heve challenged

the promotional policies at inception.

Patterson v. American Tobacco Co., C.A.

Va. 1930, 634 ¥F. 2d 744. 42 U.S. 2000e-—

2 170.

Appendix D-5

bnew ie Se allel ill la" ots

e) ‘The doctrine laid dovm in en ear-

lier case of Browm v. General Services

Adninistration, 425 US 820, 96 S. Ct.

1895, 1961 (1976); is not applicable to

this case because there existed no conti-

nuing act of discrimination. Brown was ::

not claiming failure to get a promotion

for a period of time. It was only an

isolated single act of discrimination.

The Rich, Higgins and Patterson doctrine

supra prevails over this case.

f) Plaintiff's adninistrative com-

plaint consolidating his 1978, 1979 and 1

1980 claims filed on May 18, 1981, was

acknowledged by the management on May 26

1981, with the specific advice that if it

is accepted it will be investigated; if

it is rejected in whole or in part, the

Plaintiff will be advised of his appeals

rights in accordance with the provisions

of 29 Code of Federal Regulations, Sec.

1613.215.

Appendix D-6

&) On October 9, 1981, the EEO

Branch accepted only a part or segment

(the 1930 claim) of the same complaint

for investigation. It never rejected

the 1978 and 1979 claims. Therefore,

they were deemed accepted.

h) The Plaintiff strongly protested

against the way the Western Regional EEO

Branch was handling his complaints.

i) On December 22, 1981, the Postal

Service Headquarters Office of EEO in

Washington, D.C., found that the proces-

sing of Plaintiff's complaints was a ju-

risdictional-procedural error. According-

ly, it immediately assumed jurisdiction

over the two complaints of the Plaintiff,

the first being that of Vacancy No. 328

which included issues of the 1978 claim.

j) Plaintiff requested that the in-

vestigative report on his first complaint

be vacated because the investigation and

processing was not authorized by Postal

Appendix D-7

a cee AE,

regulations, but the same request was ig-

nored for no reasons.

k) Likewise, Plaintiff requested

for the full inveytiyution of his second

complaint containing his 1978, 1979 and

1980 claims, but the same request was al-

so ignored for no reasons.

1) The Postal Agency did not inves-

tigate all aspects of both complaints

which could have included a thorough re-

view of the circumstances under which the

alleged discrimination occurred and also

the policies and practices which might

have constituted or appeared to consti--

tute discrinination even if they have not

been ®Xpressly-cited in the complaints

as provided by 29 CFR 1613.216.

n) On both cases, the Postal Agency

did not make a determination of all the

issues brought by the Plaintiff.

n) After two years and four months

fron the filing af the first complaint

Appendix D-8

(vacancy 320), the Postal Agency rendered

its final decision on August 16, 1982.

o) Plaintiff was then forced to

file hia Notice of Appeal on August 30,

1982, with the Office of Review and Ap»

peals, BKOU, with the request that he be

allowed to file his Appeal Brief at such

time as his second consolidated complaint

could be Cinally decided by the Postal

Agency.

yp) Plaintiff's appeal to the Office

of Review eat Appeals was never perfected

43 he never filtel his Appeal Brief. Par

themaore, Plaintiff requested the cancel-

Lation of the Notice of Appeal on October

LO, 1982, as he was then determined to

“ite hia consolidated complaint om Octo-

der 14, 1332.

a) Im spite of the above, the Of-

Piece of Review and Appeals, BSOC, rend-

ered its decision ageuinst the will of

the Plaintiff om April ll, 1983.

Appendix De3

r) In view of the failure of the

Postal Agency to look into all the Plain-

tiff's allegations in his complaints

coupled by its failure to make a deter—

mination of all issues presented, there

could have never been a final decision by

the Postal Agency to speak of. (29 CFR

1613.233 & 1613.281). Consequently, the

Plaintiff conld not have been forced to

file his Notice of Appeal with the Office

of Review and Appeals, EEOC.

s) Assuning arguendo that there

was a valid final decision by the Postal

Agency, the Office of Review and Appeals

could not have competently and validly

rendered its decision on «a mere Notice of

Appeal. Further more, the same novice

has been cancelled by the Plaintiff. It

could have been different if the appeal

was perfected because then the EEOC may

proceed with the processing of the appeal

even if it has already been abandoned.

Appendix D-10

(29 CFR 1613.513). Therefore, the EEOC

decision against the Plaintiff is non-

existent, invalid.

t+) The act of filing of a notice

of appeal and the invalid decision that

followed had never changed the status of

Plaintiff's first complaint (vacancy 328).

It remained to be a complaint that has

not been decided by the Postal Agency af-

ter one hundred and eighty (130) days

from the date of filing and therefore was

an approprinte subject matter of a civil

suit in a Federal Court. The Postel Agen-

cy has failed to erticulate any legitimate

non-discriminatory and non-retaliatory

reasons to justify the propriety of rend-

ering a so-called "Final Decision" that

does not comply with the mandates of the

Code of Federal Regulations (Supra).

COMPARATIVE QUALIFICAYION OF CANDIDATES

1. Among his other qualifications,

the Plaintiff is 2 holder of a Four-Year

Appendix D-11

B.S. In Education Degree, a Four-Year

Law Degree and a Graduate Degree in Edu-

cation (MA) and with several yeurs of

clericul, teaching, supervisory, investi-

gation, arbitration, and hearing exper-

iences, aside from his years of Postal

Service experiences and training achieve-

ments in Postal Management and Customer

pervi.ce.

2.- The Postal management selected

3 applicants for the position of Ad-Hoc

EEO Investigator in 1978, 12 applicants

for Position No. 328 in 1979 and 2 appli-

cants for Position No. 514 in 1980. None

of them possessed the sane formal educa-

tion and allied experiences like the

Plaintiff, yet the announcements for the

same positions show that additionel ad-

vantage if not preference should be given

to one with investigation, arbitration

and hearing experiences.

3. There were several applicants

Appendix D-12

not belonging to Plaintiff's age and mi-

nority groups and who were less qualified

than the Plaintifi’, yet were interviewed

for Positions Nos. 328 and 514. The De-

fendant has not articulated any leziti-

mate and non-diserininatory reason for

this action.

4. Since the selection comnittee

found the Plaintiff to be fully qualified,

there could have been no reason other

than discrimination .nd reprisal why he

was not called for interview for the same

positions.

9. The selection procedure used was

entirely subjective and impermissible as

it has an adverse or disparate impact to

the pleintiff end other applicants simi-

larly situated.

6. Use of subjective criteria in

selection system is not enough of itself

to violete Title VII, but courts have ex-

pressed concer over the use of subjectiv

Appendix D-13

criteria when tnere is evidence that cri-:°

teria furthered bias or discriminatory

Classification. ‘aug ve. Hoffman, 694 F.

24 1146. (Dec. 1982).

7. Establishing qualification is an

employer's prerogative, but en employer

may not utilize wholly subjective stand-

ards by which to judge its employees’

qualifications and then plead lack of

qualification when its promotion process

is challenged as discriminatory. Lee v.

Connecuh County Board of Education. 634

F. 2d 959, Ala. 1981.

DISPARATE IMPACT THEORY

1. Disparate impact claim chal-"°' °°:

lenges practicd neutral on its face, but

having more adverse impact on minorities

than others. ‘Vang, supra; Civil Rights

Act of 1964, 701 et seq; 42 USCA 2000e et

seq.

2e In making claim that promotion

policy had adverse or disparate impact

Appendix D-14

on minorities, plaintiff has initial bur-

den of proving that selection process re-

sulted in significantly discriminatory pat-

tern for promotions and, in order to pre-

vail on this theory, plaintiff need only

demonstrate lack of objective criteria

and disparity in job gxenothen. (Ibid).

3. Once employment discrimination

_ plaintiff establish prima facie case of

disparate impact, burden of proof shifts

to the employer to prove either that

plaintiff's statistics are inaccurate

and no disparity exists, or that practice

is necessary to efficient operation of

the business. (Ibid)

4. Employment discrimination plain-

tiff claiming disparate impact of employ-

er*‘s promotion policy was not required

to prove that he would have been most «

qualified individual for jobs, nor was

he required to prove discriminatory in-

tent on the part of the employer (Ibid).

Appendix D-15

5. Employment discrimination plain-

tiff challenging legitimacy of promotion

system could not be required to prove

that he qualified Car eremetions under

system that he alleged to be discriminas

tory where legitimacy of that system was

not first established. (Ibid).

PLAINTIFF'S BURDEN OF PROOF

1. Under the foregoing legal doc-—

trine, the Plaintiff is not required to

prove that he was the best or one of the

best candidates for the EEO Investigator

positions that he had sought. |

2e Therefore, the Defendant's con+

tention that the Plaintiff was not one =

among the best qualified applicents for

the positions that he had sought is not

the true reason for his rejection. It is

not legitimate and non-discriminatory,

hence it is impermissible. It is not

the true reason for rejecting the Plain-

tiff, but is just a pretext to cover-up

Appendix D~16

the discrimination and retaliation -

against him for the many EEO complaints

that he has filed against the Postal Ser-

vice.

3. Likewise, he is not required to

prove discriminatory intent on the part

of the management. The law is result or-

iented. Therefore, the bare statements

of the members of the selecting or re-

viewing committee that age and national

origin were not factors for non-select-

ing theiPlainttiff.iis6 not true. It is

also a pretext to cover-up the discrimi-

nation and retaliation against the Plain-

tiff. It has also biased him and violat-

ed his civil rights protected by law.

4. The Defendant has not articu-

lated any reason to justify the exist-

ence of disparity in job promotion.

5. Statistical figures show that

for a period of time from 1978 to 1980,

Orientals with whom the Plaintiff belongs

Appendix D-17

got only one promotion to level 15 and :

above for every 102 employees of their

group as compared - (1) to whites who

got one promotion for every 12 white em-

Ployees, (2) to Spanish surnamed who got

one promotion for every 17 employees of

their group, (3) to Negros who got one

promotion for every 15 negro employees,

and (4) to American Indian who got one

promotion for every 10 employees of their

group. (PS Fortis 1789 EEO Program for

Progress Report for 13 states, Western

Region.

CONCLUSION

In view of the foregoing factual

circumstances and legal standards, the

Defendant could not prevail in this case.

The Plaintiff has demonstrated by prepon-

derance of evidence that he was not less

qualified than the comparable applicants

who were selected for interview and those

who were selected for all the positions

Appendix D-18

that he had sought. Likewise, he has al-

s0 proved that, were it not for the dis-

crimination and reprisal he could have

been promoted to the positions that he

has sought. That other then discrimina-

tion because of age and national origin

as well as retaliation because of the se-

veral EEO complaints that he has filed

against the Postal Service there could

have been no reason why Plaintiff did not

get a promotion to the positions that he

has sought.

WHEREFORE, it is most respectfully

prayed unto this Court that the Findings

of Fact be amended or additional findings

be made and that the judgment be altered

in favor of the Plaintiff.

Dated: This 24th day of February

1986.

Respectfully submitted:

wa C. Rivera

Plaintiff, In Pro Per

Appendix D-19

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

TENT BRED ® "FILED .

"Feb 14,1986! ‘Feb 13,1936!

FORTUNATO UC. RIVERA,

Plaintiff, ) CASE NO.

WILLIAM F. BOLGER, Post-

master General, United JUDGMENT

States Postal Service,

Defendant.

this case came on regularly for trial

on May 15, 1984. The plaintiff appeared

pro se. The defendant was represented

by Ronald K. Silver, Assistant United

States Attorney.

The Court having heard the testimo-

ny of witnesses and the arguments of

counsel, having reviewed all materials

and exhibits filed in this case, and

having entered its Findings of Fact and

Conclusions of Law concurrently herewith,

Appendix E

IT IS ORDERED, ADJUDGED AND DECREED

that judgment shall be entered in favor

of the defendant against the plaintiff.

DATED: February 11, 1986.

s/Mariana R. Pfaelzer

peat tans R. Praelzer

United States District Judge

Appendix E-1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

‘FILED ‘

'Feb 13,1986 '

FORTUNATO C. RIVERA, CASE NO,

Plaintiff, CV 82-2379 MRP

Ve FINDINGS OF FACT

WILLIAM F. BOLGER, reo ad AND CONCLUSIONS

master General, United

States Postal Service ) OF LAW

This case came on regularly for trial

on May 15, 1984. ‘The plaintiff appeared

praise.’ The:defendant was represented by

Ronald K. Silver, Assistant United States

Attorney.

After hearing the testimony of wit-

nesses and the arguments of counsel, and

after reviewing all materials and exhi-

bits filed in this case, as well as

plaintiff's Objections to the Findings

of Fact and Conclusions of Law Prepared

by the Defendant, the Court makes the

following Findings of Fact and Conclu-

sions of Law.

Appendix E-2

(A tne I A

FINDINGS OF FACT

1. Plaintiff, Fortunato C. Rivera,

is an American citizen of Filipino origin

and an Oriental. He was over the age of

40 years when the events of which he com-

plains took place.

2. The plaintiff is an employee of

the United States Postal Service.

3. The plaintiff attempted to become

a supervisor under the promotional system

which was in effect prior to institution

of the Profile Assistment System for Sup-

ervisors ("PASS"). However, it was a re-

quirement that an employee have 1-1/2

years of postal service experience in or-

der to be eligible for promotion. The

promotional system was replaced nation-

wide by PASS on April 1, 1978. As of

that date, the plaintiff had not yet had

one and one-half years of postal service

experience and was therefore not quali-

fied for promotion under the old system.

Appendix E-3

4. The plaintiff then attempted to

gain promotion under PASS. The plaintiff

was found to be highly qualified to enter

into the training progran.

5. The plaintiff had to undergo sup-

ervisory training as part of the require-

ments for promotion. This was called

204B Supervisory Training. During this

training period in 1980, the plaintiff

was evaluated by Lynn White, Ralph Johns-

ton and Steve Bannister. lhLynn White, who

was the principal supervisor of plain-.

tiff's training, found that plaintiff

was unable to appreciate the value of or

necessity for paperwork. He found that

plaintiff could not master the color cod-

ing system that the Postal Service used

at the Santa Ana facility, and he assigned

someone to help plaintiff. Even with

this assistance, plaintiff was unable to

adequately perform his job. Mr. White

also found that plaintiff had difficulty

Appendix E-4

in communicating with those employees un-

der his supervision. He also testified

as to an incident where plaintiff became

involved in an argument with a customer

during a lobby call. For these reasons,

Mr. White decided that plaintiff was not

qualified to become a supervisor.

6. Ralph Johnston also observed the

difficulty that plaintiff had with master-

ing the color coding of the mails end his

difficulty in communicating with the em-

ployees under his supervision. Mr. Johns-

ton determined that plaintiff was not qua-

lified to become a supervisor.

7. %&In determining that plaintiff was

not qualified for the position of super-

visor, Mr. Bannister relied principally

on the observations of Mr. White and Mr.

Johnston. However, he also took into

consideration his own observations of

plaintiff in determining that plaintiff

was not qualified for the position of

Appendix E-5

supervisor.

8. As a result of the evaluations |

of Messers._White, Johnston and Bannis-

ter, plaintiff was denied promotion to a

supervisory position. These evaluations

were made honestly, fairly and without

discriminatory motive on the part of

messrs.e. White, Johnston and Bannister.

9. These witnesses all testified

that they did not consider Mr. Rivera's

national origin or age as factors in de-

ciding whether he was qualified for the

position of supervisor. Their testimony

was credible.

19. Plaintiff was not qualified for

the position of supervisor and he was not

denied the position of supervisor on the

basis of his age or national origin.

1l. <Any Conclusion of Law deemed

to be a Finding of Fact is hereby incor-

porated into these Findings of Fact.

Appendix E-6

CONCLUSIONS OF LAW

1. This is an action brought pur-

suant to the Civil Rights Act of 1964,

as amended, 42 U.S.C. S 2000e-16, and

the Age Discrimination in Employment Act

of 1967, 29 U.S.C. S 622 et seg.

2. Plaintiff bears the burden of

establishing a prima facie case of dis-—

crimination. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973).

3. In order to establish a prima

facie case, :théejplaintiff must show that

(1) he belongs to a protected class; (2)

he applied for and was qualified for a

position for which the employer was seek-—-

ing applicants; (3) despite his qualifi-

cations, plaintiff was rejected; and (4)

after plaintiff's rejection, the position

either remained open or was filled by a

person outside of the protected class.

If plaintiff can demonstrate a prima facie

case, the burden then shifts to defendant

Appendix E-7

to show that plain was rejected for some

non-discriminatory reason. If the defend-

ant meets this burden, then the burden

shifts back to the plaintiff to establish

that the defendant's reason is a mere

pretext. McDonnell Douglas Corp. v.

Green, supra.

4. The plaintiff has failed to es-

tablish that he was qualified for the

supervisory position he sought. In ad-

dition, the defendant has demonstrated

that the plaintiff's failure to be pro-

moted to a supervisory position was for

non-discriminatory reasons.

5. <Any Findings of Fact deemed to

to be a Conclusion of Law is hereby in-

corporated into these Conclusions of Law.

DATED: February 11, 1986

s/Mariana R. Pfaelzer

t/Mariana R. Pfaelzer

United States District Judge

Appendix E-8

FORTUNATO @. RIVERA

11621 NEARING DRIVE

ANAHEIM, CALIFORNIA 92804

TELEPHONE: (714) 636-7785

IN PROPRIA PERSONA

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

FORTUNATO C. RIVERA, ) NO. CV

Plaintiff, 82-2379 MRP (Gx)

Ve NOTICE OF MOTION;

WILLIAM F. BOLGER, POST-

)

) AND MOTION TO

MASTER GENERAL, UNITED

)

STATES POSTAL SERVICE, AMEND FINDINGS

Defendant. OF FACT AND

JUDGMENT

Date: March 17, 1986

Times: 10:00 A.M.

NOTICE OF MOTION

To the Defendant and his Attorneys of

Records:

ROBERT C. BOONER, United States Attomrmey

FREDERICK M. BROSIO, JR, Asst. US Atty.

Chief, Civil Division

RONALD K. SILVER, Asst. US Attormey

1100 United States Courthouse

312 North Spring Street

Los Angeles, Califomia 90012

Appendix F

Greetings:

PLEASE TAKE NOTICE that on the date

and time set forth above, the Plaintiff .

will bring on for hearing the following

Motion to Amend Findings of Fact and

Judgment before the Honorable Mariana R.

Pfaelzer, United States District Judge,

at Room 15, United States etetrkes Court,

312 North Spring Street, Los Angeles,

California 90012.

MOTION TO AMEND FINDINGS OF FACT

AND JUDGMENT

Pursuant to Rules 52(b) and 59(e) of

the Federal Rules of Civil Procedure,

Plaintiff hereby most respectfully moves

this Gourt to amend its Findings of Fact

and the corresponding Judgment in order

to correct the errors which are Bo ad-

verse to him.

This motion is based and supported

by the following Memorandum of Points

and Authorities as well as the

Appendix F-1

—————————————&gO

accompanying Amended Complaint of the

Plaintiff and the entire case file.

(The same complaint is attached as

"Annex A").

MEMORANDUM OF POINTS AND AUTHORITIES

Fact

I. The Judgment and Findings of

which were received by the Plaintiff

on February 15, 1986, were erroneous for

the following reasons, inter alia:

Bank

(Re:

elso

tion

1980;

1. The case file bears the fact

the Plaintiff had applied for promo-

under four (4) selection procedures

1977 to 1980. (Pls see Annex A)

aret

(1) The Santa Ana Craft Skills

procedure in 1977;

(2) The old system of promotion

inclusion in a Supervisory Register)

in 1977;

(3) The system used in the selec-

of Supervisor Computer Mark-up in

and

Appendix F-2

(4) The PASS selection procedure

earlier in 1978 (to 1980).

2. This Court made Findings of Fact

only on the old system of promotion and

the PASS procedures. It failed to make

its Findings of Fact on the Santa Ana

Skills Bank procedures and the system

used in the selection of Supervisor Com-

puter Mark-Up which did not require 204-B

supervisory training and where the Plain-

tiff had fully qualified, but was re-

jected in favor of Mr. Leroy Correa, a

less qualified candidate not belonging

to Plaintiff's age and minority groups.

3. This Court failed to appreciate

the credibility and probative value of

Plaintiff's trial Exhibit No. 11. This

is a letter dated September 29, 1982,

from the Postal management advising the

Plaintiff that he had already met "the

requirement of the Westerm Regional PASS

Training Program in effect in 1980"

Appendix F-3

which means that he had already qualified

for the position of supervisor under the

PASS procedures as of that date. This

entirely vitiates the self-serving testi-

monies of the very discriminating offi-

Clals of the Defendant. (Copy of the

sane exhibit is attached as "Annex B"),

4. The Court also failed to appre-

ciate the credibility and probative value

of Plaintiff's trial Exhibit No. 71 which

is Part II of the Profile Assessment Sys-

tem for Supervisors (PASS) and the very

document that outlines the PASS selection

procedures. Under this procedure, it is

the review board and advisory panel who

determine the qualification of a supervi-

sory candidate, not the persons of Messrs.

Yhite, Johnston and Bannister who all tes-

tified during the trial that they did not

have specific training to train supervi-

sory candidates under the PASS procedures.

The same procedures do not reauire the

Appendix F-4

supervisory candidates to under-go 204-B

training, a management practice that has

an adverse impact to the Plaintiff and

other candidates equally situated. (Pls

see Annex 0).

II. Federal Rules of Civil Procedure:

1. Rule 51(b) provides, among other

things, that the Court may amend its find-

ings and make additional findings and may

amend the judgment accordingly upon mo-’

tion of a party made not later than 10

days after entry of judgment.

2. Rule 59(e) provides that a mo=-

tion to alter or amend the judgment shall

be served not later than 10 days after

entry of the judgment.

III. Employment discrimination

plaintiff challenging legitimacy of pro-

motion system could not be required to

prove that he qualified for promotion un-

der system that he alleged to be discri-

minatory where legitimacy of that system

Appendix F-5

was not first established. Wang v. Hoff-

man, 694 F. 2nd 1146 (9th Cir. Dec.1982);

Civil Rights Act of 1964, 701 et seq; 42

USCA 2000e et seq.

IV. Under the above legal doctrine

Plaintiff is not even required to prove

that he had qualified for the positions

that he had sought. The case file shows

that the Defendant had not justified the

legitimacy and frequent changes of the

4 promotional systems used by the Santa

Ane WSC (the discriminating Postal Ins-

tallation) in so short a time which gave

an edverse imnact to the Plaintiff and

other applicants similarly situated.

The Defendant had not also justified the

the practice of requiring supervisory can-

didates to undergo 204-B training by the

Sante Ana MSC when the nation-wide PASS

selection procedures had done away with

the same system (pls. see Annex C). ‘The

use of two systems in the selection of a

Appendix F-6

Markup and Mail Processing Supervisors,

both requiring the same supervisory

skills has not likewise been justified.

Ve. CONCLUSIOI

In view of the foregoing factual

circumstances and legal standards, the

Defendant could not prevail in this case.

WHEREFORE, it is most respectfully

prayed unto this Court that the Findings

of Fact be amended or additional find-

ings be made and that the judsment be

altered in favor of the Plaintiff.

Dated: This 18th day of February,

1986.

Respectfully submitted:

s/Fortunato C. Rivera

7 FORTUNATO GC. RIVERA

Plaintiff, In Pro Per

11621 Nearing Drive

Anaheim, California 92804

Telephones: (714) 636-7785

—

Appendix F-7

UNITED STATES POST OFFICE

Santa Ana, CA 92711

DATE: September 29, 1982

OUR REF: KDW:1b

SUBJECT: Upward Mobility

TO: Fortunato Rivera

11621 Nearing Drive

Anaheim, CA 92804

This letter is in reply to your request

dated September 13, 1982 regarding a

supervisory detaii in Mail Processing.

According to our records you have

received Phase I General Management

Training, and Phase II—On-The-Job (5

weeks), and 204B training. This meets

the requirement of the Western Regional

PASS Training Program in effect in 1980.

However, if you wish continued super-

visory details in Mail Processing, it

is suggested that you discuss this with

Appendix G

your immediate supervisor and Tour

Superintendent, as they make the details

and scheduling.

Thank you for your interest in upward

mobility.

s/Kirby D. Webb

t/Kirby D. Webb

MSC Director

Employee & Labor Relations

ec: Mgr, Distribution

Appendix G=1

UNITED STATES POSTAL SERVICE

475 L'Enfant Plaza, SW

Washington, DC 20260

December 22, 1981

Mr. Fortunato C. Rivera

11621 Nearing Drive

Anaheim, CA 92804

Dear Mr. Rivera:

This is in response to your letter of

November 18, wherein you complained

about the handling of your EEO com-

plaints by the Western Region.

Upon review of the matter it was deter-

mined that due to an administrative

oversight your complaints on EEO posi-

tions were processed by the Western

Repion Office of EEO said than by

Headguarters Office of EEO. Accordingly,

this office is immediately assuming

jurisdiction over Case Nos. 5-1-0287-0

and 5-1-0535-1. In this regard, we have

further determined that the Western

Region's handling of Case No. 5-1-0287-0

Appendix H

has in no way prejudiced its investi-

gation and subsequent proposed dispo-

sition. However, upon conclusion of

your impending hearing, this office

will render the agency's final decision.

Your complaint of May 18, Case No.

5-1-0535-1, will be reassigned to a

Headquarters' Investigator who will be

contacting you, via telephone, when the

investigation will commence. I must

advise that failure to proceed with

this investigation could result in the

cancellation of your complaint.

Sincerely,

s/Victor Dunbar

t/Victor Dunbar

General Manager

EEO Appeals Division

Appendix H=1

Fortunato C. Rivera

11621 Nearing Drive

Anaheim, CA 92804

Phone (714)636-7785

August 30, 1982

The Director

Office of Review and Appeals

Fgual Employment Opportunity Commission

2401 E. Street, NW

Washington, DC 20506

NOTICE OF APPEAL

Dear Sir:

This Notice of Appeal is against

tie United States Postal Service,

475 L'Enfant Plaza, SW, Washington, DC

20260, in its final decision dated

August 16, 1982, on my old EEO complaint

designated as: Case No. 6-1-5287-0

(a/k/a 5-1-0287-0). I received the

same decision on August 19, 1982.

The same case has been absolved

and became a segment of my other com-

plaint with the same agency designated

as Case No. 6-1-5535-1 (a/k/a 5-1-0535-1).

Appendix I

This later case is concerned with a

continuing discriminatory employment

practices against me, all for my non-

selection to the position of Equal Em-

ployment Opportunity Imvestigator in the

Postal Service. It started in 1978

with an AD-HOC Investigator vacancy and

ended up with vacancy No. 514 in 1980.

Case No. 6-1-5535-1 (a/k/a 5-1-

0535-1) has not as yet been fully inves-

tigated in its entirety as an inde-

pendent complaint embodying a chain of

events or successive discriminatory

acts constituting a single cause of

action.

I have consistently been opposing

the piecemeal investigation of this

later complaint. I made my stand very

clear that should the US Postal Service

officials disagree with the legal

theories I have propounded in my oppo-

Appendix J-]

sition letters I would certainly appeal

their action to higher authorities.

In view of the foregoing, it is

most respectfully requested that I be

allowed to file my Appeal Brief at such

time as the US Postal Agency could

render its final decision on my entire

complaint, Case No. 6-1-5535-1 (a/k/a

No. 5-1-0535-1).

Very truly yours,

s/Fortunato C. Rivera

t/Fortunato C. Rivera

Copy furnished:

Gen. Manager

EEO Appeals Division

US Postal Service

Washington DC 20260-4245

Appendix I-2

11621 Nearing Drive

Anaheim, California 92804

October 10, 1982

The Director

Office of Review and Appeals

EEO Commission

2401 E Street, NW

Washington, DC 20506

Re: Rivera, Fortunato C.

Date: 08-30-82

Agency: USPS-ADM

Agency No.: 6-1-5287-0/5-1-0287-0

Docket No.: 01.82.2278

Dear Sir:

In view of the apparent refusal

of the US Postal Service Agency to

render its final decision on all the

issues I have propounded in Case No.

6-1-5535-1 (a/k/a 5-1-0535-1), I am now

being constrained to file a civil suit

with the District Court against the

United States Postal Service.

Therefore, the filing of an Appeal

Brief as mentioned in the last para-

graph of my Notice of Appeal dated

Appendix J

(is — a

August 30, 1982 has now become an impos-

sibility. Cancellation of the same no-

tice, is therefore, requested without

prejudice.

Very truly yours,

s/Fortunato C Rivera

t/Fortunato C Rivera

Complainant

Copy furnished: The General Manager

EEO Appeals Division

US Postal Service

475 L'Enfant Plaza, SW

Washington, DC 20260-

4245

Appendix J=-]

PART II

The Profile Assessment System

for Supervisors

This Profile Assessment System for

Supervisors (PASS) is a method which

_the US Postal Service has developed for

selecting initial level supervisors. A

brief explanation of how this system

works will help you not only have a bet-

ter understanding of the system but also

feel more comfortable with the process.

First of all, the initial work in

deveioping the process began with inter-

viewing field personnel, (first and

second level supervisors) who knew

about the specific initial level super-

visor job. Working with the Employment

and Placement Division of the Employee

Relations Department at Headquarters,

these supervisors identified job ele-

ments that are necessary for initial

level supervisor jobs. These “elements”

Appendix K

are based on knowledges, skills, or

abilities which can be demonstrated on

the job by craft employees. These

elements do not represent an exhaustive

list of elements necessary for the

supervisor's job but do represent those

most essential to the supervisor's job.

For each element they also developed

three statements which describe three

levels of work performance. Both, you*

and your supervisor will be given a

separate, but identical, workbook listing

each of these elements. You will be

asked to read each element and the

three statements following it and decide

which statement best describes your job

performance. Once you and your super-

visor separately have completed these

workbooks, each of you will transfer your

responses to an answer sheet. The answer

sheet will be provided to you when you

Appendix K-l]

return your workbook to your postmaster

or other designated person. These

answer sheets will be sent by your

installation to the National Test

Administration Center in Los Angeles

where your responses will be compared

to your supervisor's responses. Results

will be sent to a review board who will

review the workbooks and resolve any

differences between your responses and

your supervisor's responses. the

review board will also verify the

documentation (examples) given to sup-

port your statements.

You will finally be placed into

one of three categories: 1) excellent

demonstration of ability; 2) good

demonstration of ability; 3) some

demonstration of ability. A list of

candidates in each of these categories

will be sent to the local office. When

Appendix K-~2

ii i

a vacancy in your office occurs, an

advisory panel will meet to recommend

three to five best qualified candi-

dates to the Installation Head. The

final selection will - made by the

Installation Head.

" "

* Here "you" and "your" refer to the

Candidate.

Appendix K-3

CIVIL RIGHTS ACT OF 1964, AS AMENDED

42 USCA 2000e-16

Government agency or official not

relieved of responsibility to assure

nondiscrimination in employment or equal

employment opportunity -

Sub-paragraph (e) provides:

Nothing contained in this Act shall

relieve any Government agency or official

of its or his primary responsibility to

assure nondiscrimination in employment

as required by the Constitution and

statutes or of its or his responsibili-

ties under Executive Order 11478 relat-

ing to equal employment opportunity in

the Federal Government.

Appendix L

AGE DISCRIMINATION IN EMPLOYMENT

ACT OF 1967, AS AMENDED. 29 USCA 633a

Sub-paregraph (d) provides:

When the individual has not filed

a complaint concerning dge discrimina-

tion with the Commission, no civil ac-

tion may be commenced by any individual

under this section until the individual

has given the Commission not less than

thirty days' notice of an intent to

file such action. Such notice shall be

filed within one hundred and eighty days

after the alleged unlawful practice oc-

curred. Upon receiving a notice of in-

tent to sue, the Commission shall promp-

ly notify all persons named therein as

prospective defendants in the action and

take any appropriate action to assure

the elimination of any unlawful practice.

Appendix M

U.S. POSTAL SERVICE

QUALIFICATION STANDARD

D. EXPBRIBNCE REQUIREMENTS (Applicable

to the position of EEO Investigator

Level 19)

' Sub-paragraph Number 5 provides:

Successful completion of study in

a resident school above high school —

level leading to a degree in directly

related fields such as psychology, so-

ciology, personnel management, educa-

tion, public administration, or busi-

ness administration may be substituted

for general experience at the rate of

nine (9) months of experience for each

academic year of education, up toa

maximum of thirty six (36) months.

Appendix N

IN THE |

SUPRHW#® COURT OF THE UNITED STATES

OCTOBER TERM, 1988

i NO.

FORTUNATO C. RIVERA,

Petitioner,

WILLIAM F. BOLGER, Postmaster General

UNITED SLATES POSTAL SERVICE,

; Respondents.

eae aes eee eae ae ens eee ne ae ae ae ee en ae ae ee

SS SE eS eT ES ES SE Se eS Se SD Ge ee

PROOF OF SERVICE

I, Sonia E. Rivera, do hereby declare

under penalty of perjury that pursuant to

Rule 28.4(a) of this Court, I served co-'

pies of the within Petition for Writ of

Certiorari to the United States Court

of Appeals for the Ninth Circuit on the

Counsels for the Respondents by enclos-

ing copies thereof in two separate enve-

lopes, first class postage prepaid, ad-

dress to:

The Solicitor General

Department of Justice

Washington, D.C.20530

Atty. James A. Friedman

Office of Labor Law, USPS

475 L'Enfant Plaza, S.W.

Washington, D.C. 20260-1133

and depositing the same in the United

States mails at Santa Ana, on

April J , 1988. |

DATED: This 5” day

~- Page One of Two Pages -

COUNTY OF )

ra April 5, 19 1988

. before me, the undersigned, a Notary Public in and for

said State, personally appeared SOnia E, Riveratkkkkkrrkkkkccrrkkrkckak

personally known to me (or proved to me on the basis of

Satisfactory evidence) to be the persons whose name(g)

1S/9{K Subscribed to the within instrument and acknowledged

ip me that h@she/tlygg executed the same.

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WITNESS my hand and official seal.

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OFFICIAL SEAL

SCOTT R. THOMAS

Notary Public-California

“Soa Office in

Orange County

My Comm. Exp. Jan. 8, 1990

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Signature

SF-423-4 (REV A - 7/82) (CA) (INDIVIDUAL)

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(This area for official notarial seal)

- Page Two of ‘lwo Pores-

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