Petition for Writ of Certiorari — Munoz v. Rice

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1990

MANUEL MUNOZ

Petitioner

DONALD B. RICE

SECRETARY OF THE AIR FORCE

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Shelby W. Hollin

Attorney at Law

7710 Stagecoach

San Antonio, Texas 78227

Tel (512) 674-2584

State Bar # 09879000

QUESTIONS PRESENTED FOR REVIEW

I. Did the Court of the Fifth Circuit

implement an improper standard of proof

which failed to consider the rebuttal of

Defendant's explanation after agreeing

with the District Court that a prima facie

case of discrimination by retaliation haa

not been established?

A. Did the U.S. Supreme Court decision

in United States Postal Service Board of

Governors vs. Aikins, 460 U.S. 711, 715

(1983) require the Trial Court to decide

the question of whether or not the

employer intentionally discriminated

against the claimant?

II. Was there an erroneous decision

because the Trial Court and the Circuit

Court relied on the question of

establishing a prima facie case?

A. Did the Trial and Circuit Courts err

in evaluating the prima facie case of

reprisal where it was shown that the

employer had knowledge of the employee's

protected activity and the non-selection

took place while the protected activity

was continuing?

B. Did the Fifth Circuit Court of

Appeals err when it refused to reverse the

District Court ruling regarding a prima

facie case of reprisal?

PARTIES

The parties to the proceedings are set

forth as follows:

Manuel Munoz, Jr., employee of the United

States Air Force at Kelly Air Force Base,

Texas.

Petitioner

Donald B. Rice, Secretary of Air the

Force.

Respondent

TABLE OF CONTENTS

Table of pe ee

Citation of the Opinions of the

Lower eg ne ee a ae

(i) Brief for Petitioners

Opinion ON Se

Statement of Jurisdiction..........

Constitutional Provisions, statutes

and TEGuLlACIONS...cccccccccscccccece

Statement Of the CaSe...ccccccccces

MAMIE. 05.st4 conned terncsmaunees

CONCLUSION. ccccccccccccccesccsesess

Cerificate of Service........ceeeee

Appendix -"_" SS PSEC e eee ere S99 25.9 9

Appendix "BW ..cccccccccccccccccece

TABLE OF AUTHORITIES

Batson v. Neal Spelce Associates,

Inc., 765 F.2d 511, 514

(5th Cir. AOSSP coccessesecsescesscece

Cooter & Gell v. Hartmarx Corp.,

58 U.S.L.W. 4763, 4769 (U.S.

June ll, APSO cocceescesseseeeeseces

Jack v. Texaco Research Center,

743 F.2d 1129, 1131 (5th Cir.

1984) cited in Johnston, supra,

869 F2d at L57lewweceeeceeeeeceeees

Jones v. Flagship Int'l, 793 F.2d

714, 724 (5th Cir. 1986), cert.

denied, 479 U.S- 1065 TEOOTE 6ee6668

Marshall v. Segona, 621 F.2d 763,

766 n.4 (5th a OO Dh caaeeeeeeees

Pressay v. Patterson, 898 F.2d

1018, 1020 (5th Cir. 1990).........

Ramirez v. Hofheinz, 619 F. 2d

442, 446 (Sth Cir. 1980)...........

Texas Denarment of Community

Affiars v. Burdine, 450 U.S.

248 ROUGE CRS SHESEOHESSCECOEROCOREOCE

Thomas v. Capital Sec. Servs.,

Inc., 836 F.2d 866, 872

(Sth Cir.1988) (en banc)...........

United States Postal Service Board

of Governors vs. Aikins, 460 U.S.

71l, 715 $h }) rrr TTT TTT

TABLE OF AUTHORITIES

(Cont. )

Vick v. Texas Employment Comm'n,

514 F.2d 734, 737 (5th Cir. 1975).. 29

CITATIONS OF THE OPINIONS

OF THE LOWER COURT

Manvel Munoz, Jr., and Rose _ Trevino

Montemayor, No. SA-86-CA-1120 (W.D. TX

1990)

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NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1990

MANUEL MUNOZ, JR, federal employee

of the Department of the Air Force

Petitioner

Vv.

DONALD B. RICE

SECRETARY OF THE AIR FORCE

Respondent

On Petition for a Writ of Ceritorari

to the United States Court of Appeals

For the Fifth Circuit

BRIEF FOR PETITIONER

OPINIONS BELOW

Petitioner, Mr. Munoz represents unto

this Court the he has been aggrieved by

the decision reported below as Manuel

Munoz Jr. and Rose Trevino Montemayor, No.

89-5657, (Sth Cir. 1990). That the

decision sustained a judgment in favor of

respondent by the United States District

Court for the Western District of Texas,

cited as Manuel Munoz, Jr. and _ Rose

Trevino Montemayor, No. SA-86-CA-1120

(W.D. TX 1990).

STATEMENT OF JURISDICTION

The judgment of the court of Appeals

for the Fifth Circuit was entered 27 July,

1990.

There was no request for a hearing

and no extension of time within which to

file the petition for a writ of

certiorari.

Jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254 (1).

STATUTE INVOLVED

The following section of Title VII is

involved in this case: 42 U.S.C. § 2000e-

3(a), which provides in pertinent part:

It shall be unlawful employment

practice for an employer to

discriminate against any of its

employees - - because he has

opposed any practice made

unlawful employment practice by

this title [42 U.S.C. §§2000e-

2000e-17]) or because he has made

a charge, testified, assisted,

or participated in any manner in

an investigation, proceeding, or

hearing under this title [42

U.S.C. §§2000e - 2000e-17]).

nec sees

STATEMENT OF THE CASE

Mr. Munoz filed suit in federal

district court alleging inter alia, that

his non selection for promotion was

predicated on reprisal discrimination in

violation of Title VII of the Civil Rights

Act of 1964. The District Court found that

a prima facie case of retaliation had not

been established and the Court of Appeals

for the Fifth Circuit affirmed.

The Fifth Circuit judgment contains

references to the referral to the

selection panel, the non selection and the

ongoing protected activities.

Jurisdiction to the United States

Court of Appeals for the Fifth Circuit was

under 28 U.S.C. §1291 and 28 U.S.C. §

1294.

ARGUMENT

The District Court failed to properly

follow prior precedents of courts of

appeal and the U.S. Supreme Court in

determining whether a prima facie case of

reprisal had been established. The Fifth

Circuit sustained the erroneous decision

and both courts failed to evaluate the

case according to the U.S. Supreme Court

decisions in the Texas Deparment of

Community Affiars v. Burdine, 450 U.S. 248

(1981) and Aikens, supra.

Mr. Munoz had engaged in protected

activities, some administrative complaints

and a class action Title VII case were in

being when he was found qualified,

referred, considered, and non-selected.

The employers went ahead and selected a

Hispanic male. These facts were sufficient

to establish a prima facie case.

Evaluation of defendant's explanation

was tainted by the belief that Mr. Munoz

had not established a prima facie case.

The rule 41(b) Motion had been denied and

both Burdine, supra and Aikens, supra

direct the Court's attention to the

defendant's explanation, whether that

decision had been motivated by

discriminatory animus or whether plaintiff

had shown the explanation to be pretextual

and without credence.

CONCLUSION

In summary, the United States Court

of Appeals for the Fifth Circuit applied

an improper standard of proof which failed

to consider the rebuttal of Defendant's

explanation after agreeing with the

District Court that a prima facie case of

discrimination by retaliation had not been

established. The Supreme Court's decision

in United States Postal Service Board of

Governors vs. Aikins, 460 U.S. 711, 715

(1983) requires the Trial Court decide the

question of whether or not’ the employer

intentionally discriminated against the

claimant. This was not accomplished at

either level below. The lower Courts erred

in failing to find a prima facie case

where it was shown that the employer had

knowledge of petitioner's protected

activity, i.e., because he was the lead

plaintiff in a class action suit as well

as a complainant in several successful

administrative complaints against the

employer.

elby W. Hollin

Attorney at Law

7710 Stagecoach

San Antonio, Texas 78227

Tel (512) 674-2584

State Bar # 09879000

CERTIFICATE OF SERVICE

I certify that three copies of the

foregoing petition with appendeces was

mailed this date, via certified mail,

return receipt requested to the following:

Ronald F. Ederer

United States Attorney

Western District of Texas

727 E. Durango Boulevard, Suite A-601

San Antonio, Texas 7806

Solicitor General

Department of Justice

Washington, D.C. 20530

on this day Nov xr, 1990.

—_—w

SHELBY W. HOLLIN

tn Od Pode

APPENDIX

eae

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-5657

MANUEL MUNOZ, JR., AND

ROSE TREVINO MONTEMAYOR,

Plaintiff/Appellants,

versus

DONALD B. RICE, Secretary

of the U.S. Air Foce,

Defendant/Appellee.

Appeal from the United States District

Court for the Western District of Texas

Before

GEE, SMITH, and WIENER,

Circuit Judges

JUDGMENT

This cause came on to be heard on the

record on appeal and was taken under

submission on the briefs on file.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court

that the judgment of the District Court in

this cause be affirmed.

IT IS FURTHER ORDERED that plaintiffs-

appellants pay to the defendant-appellee

the costs on appeal to be taxed by the

Clerk of this Court.

July 27, 1990

ISSUED AS MANDATE: August 20, 1990.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-5657

D.C. Docket No. CA-SA-86-1120

MANUEL MUNOZ, JR., AND

ROSE TREVINO MONTEMAYOR,

Plaintiff/Appellants,

versus

DONALD B. RICE, Secretary

of the U.S. Air Foce,

Defendant/Appellee.

Appeal From the united States District Court

For the Western District of Texas

(CA-SA-86-1120)

(July 27, 1990)

Before

GEE, SMITH and WEINER

Circuit Judges

PER CURIAM: 1

On July 31, 1986, Manuel Munoz,Jr.,

brough suit against the Secretary of the

Department of the Air Force and _ two

employees. Munoz alleged that his non-

selection for a promotion at Kelly Air

Force was a Giscriminatory reprisal

against him for engaging in a protected

activity, in this case lodging of various

complaints against his employer relating

to alleged civil rights violations. Thus,

Munoz contended that the defendants had

violated various provisions of the civil

Rights Act of 1964 as amended,

specifically 42 U.S.C. §§2000e-3(a) and

1 Local rule 47.5.1 provides:

"The publication of opinions that have no

precedential value an merely decide

particular cases on the basis of well-

settled principles of law imposes needless

expense on the public and burdens on the

legal profession." Pursuant to that rule,

the Court has determined that this opinion

should not be published.

2000e-16. Munoz also alleged, under 42

U.S.C. § 1985(2), a private conspiracy by

the individual defendants to violate his

civil rights.

To make his prima facie case of

retaliation under section 704(a) of Title

VII of the Civil Rights Act,2 Munoz had to

establish (1) that he engaged in activity

protected by Title VII; (2) that an

adverse employment action occurred; and

(3) that there was a causal connection

between the participation in the protected

activity and the adverse employment

decision. Jones v. Flagship Int'l, 793

F.2d 714, 724 (Sth Cir. 1986), cert.

denied, 479 U.S. 1065 (1987). The district

court found that while Munoz adequately

proved the first two elements, he failed

to establish the third and thus could not

2 42 U.S.C. §2000e-3(a).

establish a prima facie case. On appeal,

Munoz presents several specific challenges

to the district court's evaluations of the

evidence as to causation. Munoz also

contends the district court erred in not

sanctioning the defendants for alleged

discovery abuses.

We affirm the district court's

judgment and its analysis of the

factfindings; specifically, we affirm the

court's finding that Munoz's prima facie

case failed because he did not show a

causal connection between the protected

activity and the adverse employment

decisions. Beyond this, we address only

those issues specifically contested on

appeal.

At trial it was established (i)

General Laughlin telephoned selection

panel chairman Juan Garza about Munoz and

(ii) Laughlin had never previously

telephoned Garza about a candidate before

the selection panel. Munoz argues that the

district court erred in not inferring from

these facts that either Laughlin, Garza,

or both were involved in unlawful

retaliation against Munoz because of

Munoz's prior complaint. However, there is

no evidence in the record to support

Munoz's allegations regarding the nature

of the telephone conversation and, given

that Laughlin had previously transferred

Munoz for the specific purpose of removing

him from potential retaliation against

him, the most reasonable assumption is

that, because he was aware of the

possibility of retaliation, General

Laughlin called to insure that proper

procedures were being followed. We find no

error in the district court's

determination that this was in fact the

purpose of the call.

Munoz also asserts that the court

erred in denying his trial motion for an

adverse inference based upon the alleged

deletion of a favorable comment on Munoz's

"971" form. This supposed deletion, though

it irrelevant to the non-selection, as no

evidence suggests that the "971" forms

were ever considered by the panel members,

and we do not find the district court's

factfinding on this issue to be clearly

erroneous. Prior to the selection, the

panel reviewed only the career briefs.

Thus, any alteration of Munoz'‘s 971 form

could not have had any effect upon the

adverse employment decision at issue.

As to the alleged deletion's use in

showing animus toward Munoz, there is no

evidence to establish who, if anyone, was

responsible for the deletion. Certainly,

nothing suggested that the selection panel

members were in any way connnected to, or

involved in, the alleged deletion.

Moreover, the favorable comment deleted

was neither recent nor especially

laudatory. Thus, we find no error in the

district court's not drawing any adverse

inference.

We also find the Air Force's

destruction of the career briefs reviewed

by the selection panel in no way required

the district court to grant Munoz an

adverse inference. First, the Air Force

regulation cited by Munoz, AFR 40-335

section F (records and review), does not

require preservation of actual computer-

generated career briefs. Second, we find

no error inthe district court's finding

that during discovery, Munoz was provided

with the same information that was

available to the panel, as it was

generated from the same computer program

and files.

Although Munoz received the updated

1984 version of the briefs during

discovery, from this version it was

apparent what information was before the

selection panel when it reviewed the 1983

career briefs. Though Munoz had filed a

Freedom of Information Act request for the

documents, this request came two months

after the non-selection, and the career

briefs had already been destroyed. Then,

given that the career brief information

was still available from computer records

and was provided to Munoz, he has not

demonstrated bad faith on the part of the

Air Force.

Thus, Munoz's claim fails, as the

adverse inference to be drawn from

destruction of records is predicated upon

bad conduct of the defendants. ([T)he

circumstances of the act must manifest bad

faith. Mere negligence is not enough, for

it does not sustain an inference of

consciousness of a weak case." Vick v.

Texas Employment Comm'n, 514 F.2d 734, 737

(Sth Cir. 1975).

Next, Munoz contends that the process

used by the selection panel was so

subjective that is was unconstitutional.

Munoz claims that the process, which he

calls a "lottery", although facially

neutral, actually han an adverse impact

upon those, like himself, who had

previously registered complaints.

The process employed by the selection

panel, though, was not a lottery in any

ordinary sence of the word. The relevant

decisional criteria were rationally

retated to the position being filled and

were known to all of the panel members. 3

Each panel member, based upon his

evaluations of the candidates drawn from

both the career briefs and personal

knowledge, submitted the name of the

candidate whom he believed to be _ the

weakest of the eleven candidates. The

panel members then continued to submit one

name at a time, thus forming three

gradually expanding lists. Whenever any

candidate's name appeared on all three

committee members' lists, that candidate

was eliminated.

This process was followed until only

four candidates remained. Munoz was

eliminated in the second round; the

evidence suggested that he was ranked

eighth or ninth of the eleven candidates.

3 Among those criteria important

in the position being filled was an

ability to get along with others, an area

where Munoz fared poorly.

Court's must carefully scrutinize

subjective evaluations, which often appear

to be arbitrary and are always susceptible

to discriminatory application. Ramirez v.

Hofheinz, 619 F. 2d 442, 446 (5th Cir.

1980). Here, though, the use of subjective

criteria in the selection process does not

give rise to a constitutional violation

where plaintiff has not shown either an

adverse impact on any protected class --

in this case the class of those who

previously filed complaints against the

Air Force - - or that the subjective

criteria were used to disguise

discriminatory action. See Id.

Munoz requests sanctions against the

defendants under Fed. R. Civ. P. 11 and 37

(b) (2) (c) based upon the defendant's

failure to respond timely to discovery

requests. Specifically, Munoz asks for a

striking of the defendants pleadings or

the drawing of an adverse inference. The

defendants argue that Rule 11 applies only

to signed documents filed with the Court

and does not govern delays in responding

to discovery.

We do not pass on this issue here.

Rather, we note that we review the

district court's decision on whether to

impese sanctions only for abuse of

discretion under Rule 11, see Cooter &

Gell v. Hartmarx Corp., 58 U.S.L.W. 4763,

4769 (U.S. June 11, 1990); Thomas ov.

Capital Sec. Servs., Inc., 836 F.2d 866,

872 (5th cCir.1988) (en banc); and under

rule 37 (b), see Pressay v. Patterson, 898

F.2d 1018, 1020 (5th Cir. 1990).

As explained above, Munoz has not

adduced sufficient evidence to show any

bad-faith destruction of documents by the

Air Force. The other disocvery abuses

alleged by Munoz relate to the Air Force's

failure to tender certain documents even

after Munoz had requested and the court

had granted, an order to compel. In this

case, Munoz's discovery requests were

legion, including ponderous seventy-seven

interrogatories accompanied by demands for

a myriad of documents.

It is within the discretion of the

district court to deny Munoz's motion to

strike defendants' pleadings, as Munoz

presented insufficient evidence to show

either objectively unreasonable conduct,

as is required for rule 1l sanctions, see

Thomas, 836 F.12d at 873, or wilful or bad

faith conduct, as is required for

dismissal under rule 37 (b) (2) (c),4 see

Batson v. Neal Spelce Associates, Inc.,

765 F.2d 511, 514 (5th Cir. 1985). Because

4 Striking of the pleadings here

presumably would have the same effect as a

dismissal. See Marshall _v. Segona, 621

F.2d 763, 766 n.4 (5th Cir. 1980).

Munoz did not demonstrate any bad faith

destruction of evidence by the Air Force

and because the Air Force did produce

almost all of the requested documents, we

find that the district court was also

within its discretion not to draw an

adverse inference.

AFFIRMED. 5

5 The notice of appeal was filed

on behalf of plaintiffs, Manuel Munoz, Jr.

and Rose Trevino Montemayor. We affirm as

to both.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MANUEL MUNOZ, JR.

AND ROSE TREVINO

MONTEMAYOR,

Plaintiffs,

)

VERNE ORR, SECRETARY )

OF THE UNITED STATES )

DEPARTMENT OF THE )

AIR FORCE; AND JOHN )

PANTUSO, INDIVIDUALLY, )

AND ALFRED MEDINA, )

INDIVIDUALLY, AND )

HANS LANG, INDIVIDUALLY, )

AND CLIFFORD BINGHAM, )

INDIVIDUALLY AND A.T. )

GONZALEZ, INDIVIDUALLY )

AND TOMMY RICHARDSON, )

INDIVIDUALLY, AND LARRY )

CHEEVERS, INDIVIDUALLY, )

AND L.M. GRIMARD, )

INDIVIDUALLY, AND )

ARNOLD P. SPITZER, )

INDIVIDUALLY, AND A.D. _ )

LOPEZ, INDIVIDIALLY, )

JUAN SILVA, INDIVIDUALLY)

AND WILLIAM RAUE, )

INDIVIDUALLY AND )

ROBERT WARNEKE, )

INDIVIDUALLY, AND )

MILTON ROY BAKER )

INDIVIDUALLY, )

)

Defendants.

SA-86-CA-1120

ORDER

The Court has previously dismissed

numerous claims in this action. In

plaintiff Manuel Munoz's remaining Title

VII claim, he alleges that he was not

selected for promotion in retaliation for

his having filed previous discrimination

complaints against defendant Secretary of

the Air Force. Plaintiff seeks retroactive

promotion to the position.

FINDINGS OF FACT

1 Plaintiff Manuel Munoz has been

employed as a civilian employee of

the United States Department of the

Air Force at Kelly Air Force Base,

Texas, at all times herein.

2% Prior to March 1, 1983, plaintiff

Munoz had filed numerous complaints

of Giscrimination and retaliation

prusuant to Title VII of the Civil

Rights Act of 1964.

On March 1, 1983, plaintiff Munoz was

one of eleven candidates whose names

appeared on a Merit Promotion

Certificate for consideration to the

position of Supervisory Production

Controller, GS-1152-12.

Air Force policy required the

establishment of a panel of three

supervisors, each of higher rank than

the position to be filled and

containing one minority member.

The selection panel was composed of

Bob Galloway, Gilberto Tobias and

Juan Garza. Since the position to be

filled existed in Mr. Galloway's

section, Mr. Galloway was appointed

chairman of the panel.

Mr. Galloway inquired of Ms. Patty

Byrom, a Personnel Staffing

Specialist at Kelly AFB, whether it

was necessary for the panel to

interview the candidates.

Ms. Byrom advised Mr. Galloway that

it was not necessary for the panel to

interview the candidates, but that if

they chose to interview any of the

candidates they must interview them

all. The panel followed Air Force

regulations in their procedures.

All of the panel members were aware

that Mr. Munoz had filed previous

discrimination complaints against

Kelly Air Force Base.

General Laughlin contacted Mr. Garza

before the panel deliberated to

ensure that proper procedures

regarding the panel were followed.

The General has not previously

contacted Mr. Garza when Mr. Garza

served on other selection panels. Mr.

Garza never related his conversation

to the other panel members, because

10.

ll.

12.

it did not concern the decision

making process. ;

Since the eleven candidates and their

job performances were well known to

the panel, the panel decided not to

interview any of the candidates.

The GS-1152-12 Supervisory Production

Controller position required four

years of general experience and two

years of specific experience. All

eleven candidates qualified. Once the

eleven had made this cut, they were

all on equal footing before the

selection committee.

The selection committee did not

follow written, specific guidelines

in filling the GS-12 position. The

selection panel wished to fill the

position with the best qualified

individuals based on past job

performance, future potential, and a

13.

demonstrated ability to get the job

done. They sought broad work

experience, aricraft expericence,

communication skills, and an ability

to work well with people.

The Civilian Personnel Supervisory

Production Controller Posiiton

Description dated January 3, 1983,

emphasized that the controller:

“must have a thorough knowledge

of production control operating

procedures and industrial

methods as applied to

repair/overhaul procedures in

order to develop practical

operating procedures for

assuring material availability,

scheduling, and sequencing of

work. He must have a thorough

knowledge and understanding of

AF, AFLC, and local directives,

procedures, shop functions and

layout, and a good knowledge of

aircraft. He must be able to

plan, supervise, and coordinate

work performed by employees and

give direction in a positive,

effective manner as decisions,

committments, procedures, and

policies established have a

direct effect on the efficiency,

productivity and overall

14,

15.

16.

effectiveness of the maintenance

production effort. Tact and good

judgment are necessary in

relations with others as

considerable coordingation is

also required in accomplishment

of special tasks."

The selection panel reviewed the

Computerized Placement Data Brief of

each of the eleven candidates before

entering into their deliberations.

The actual briefs were disposed of

after the selection process was

completed.

The selection panel each reviewed the

placement data briefs, talked about

each of the candidates, and then

reached independent conclusions as to

which of the candidates they

supported. They did not assign

specific weight to factors in the

brief.

The panel did not discuss plaintiff

Munoz's EEOC history. The panel did

17.

18.

19.

20.

discuss Munoz's difficulty in getting

along with others.

Plaintiff's previous EEOC complaints

and cases against the Air Force were

not factors in the decision to pass

over Mr. Munoz for promotion.

The panel selected these top four

candidates in this fashion. Each

panel member would write their three

weakest candidates on a piece of

paper in an elimination round. When

three names matched, the candidate

was not selected for promotion.

Mr. Munoz was not selected in the

second of these elimination rounds,

meaning that the panel ranked him

eighth or ninth of the eleven

candidates.

When four candidates remained, the

panel selected Mr. Carrasco.

21.

22.

23.

Mr. Jose Carrasco was selected on the

basis of excellent job performance,

specific knowledge of the section in

which the Supervisory Production

Controller was to work, a

demonstrated ability to get the job

done, and a good rapport with co-

workers, subordinates, and

supervisors. Each panel member felt

that Mr. Carrasco was the best

qualified man for the job.

Mr. Jose Carrasco received an

Outstanding performance in 1980 and a

Sustained Superior Performance rating

in 1966. Mr. Munoz has also received

other lesser awards not included in

the career brief.

Mr. Carrasco had demonstrated a high

level of job performance during a

special project which involved a

similar level of coordination as that

needed in the job to be filled.

24. Mr. Carrasco was better qualified for

the Supervisory production Controller

Position than was plaintiff Munoz.

25. Plaintiff has properly exhausted all

adminstrative remedies before

bringing this lawsuit.

CONCLUSIONS OF LAW

The Court has jurisdiction over

plaintiff's allegations pursuant to Title

VII of the Civil Rights Actof 1964, 42

U.S.C. §2000e et seq. §704(a) of Title VII

provides that:

"it shall be an unlawful

employment practice for an

employer to discriminate against

any of his employees...because

he has made a charge, testified,

assisted, or participated in any

manner in an investigation,

proceeding, or hearing under

this subchapter."

42 U.S.C. §2000e-3(a).

An employee who sues under §704 (a)

must prove a prima facie cause of

discrimination. Once the employee has met

his prima facie burden, the burden of

production shifts to the employer, who

must articulate a legitimate, non-

discriminatory justification for his

action. McDonnel Douglas Corp. v. Green,

411 U.S. 702, 802, 93S.Ct. 1817, 1824, 36

L.Ed.2d 668 (1973) cited in Johnston v.

Harris County Flood Control District, 869

F.2d 1565, 1571 (5th Cir. 1989).

Ultimately, the employee must prove a

causal connection between the protected

activity and the adverse employment

decision. The connection required is

causation in fact. The employee will

prevail only by proving that "but for" the

protected activity, he would not have been

subjected to the adverse action. Jack v.

Texaco Research Center, 743 F.2d 1129,

1131 (5th Cir. 1984) cited in Johnston,

supra, 869 F2d at 1571.

A plaintiff establishes a prima facie

case of retaliation by showing (1) that he

was engaged in an activity protected by

Title VII. (2) that an adverse employment

action occurred and (3) that there was a

causal connection between the

participation in the protected activity

and the adverse employment decision. Jones

v. Flagship International, 793 F.2d 714,

724 (5th Cir. 1986) cert denied 479 U.S.

1065, 107 S.Ct. 952, 93 L.Ed.2d 1001. If

no legitimate, nondiscriminatory reasons

for the defendant's actions exists or if

the plaintiff can show any reason

proffered by defendant to be a pretextual

reason for discrimination, then Title VII

liability results.

The Court finds that plaintiff did

not engage ina protected activity under

704 (a). Plaintiff had filed numerous

discrimination complaints against

defendant Air Force and was the named

plaintiff in a class action lawsuit

against the Air Force at the time of his

nonselection for promotion. Such

nonselection for promotion constitutes an

adverse employment action. However,

plaintiff does not sufficiently show a

causal connection between the two.

Plaintiff proved that each selection

panel member knew plaintiff had previously

filed many discrimination charges against

the Air Force. Plaintiff did not show that

any panel members discussed plaintiff's

previously filed charges or considered

them during deliberation. Plaintiff did

not sufficiently prove that "but for" his

previous discrimination charges, he would

have been promoted.

In fact, defendant Air Force

conclusively established a legitimate,

non-discriminatory justification for

plaintiff's nonselection. The job required

tact, coordination between branches, and

one who had positive employee relations;

the plaintiff had difficulty working with

people. The panel members wanted an

employee who had demonstrated an ability

to get the job done; plaintiff did not

have this reputation. The panel members

chose Mr. Jose Carrasco because of his

qualifications in these areas.

Additionally, the placement data briefs

reflected that Mr. Carrasco had received

and Outstanding Performance Rating in 1980

and a Sustained Superior Perforance Rating

in 1978. Plaintiff Munoz had received only

an Outstanding Perforance Rating in 1966.

Plaintiff requests that the Court

grant plaintiffs an “adverse inference,"

because the panel disposed of the

computerized placement data briefs after

examining them. Plaintiff contends that

they should have been saved pursuant to

Air Force Regulation 40-335. As a result,

plaintiff has not received the actual data

placement brief during discovery, but has

received a later version of the brief,

dated 1984. In light of the facts that the

information was stored on a computer file,

the updated version accurately reflects

plaintiff's record in 1983, and

plaintiff's testimony did not raise

questions about § the 1984 edition's

accuracy, plaintiff's "adverse inference"

request will be denied.

The evidence shows that the parel

selected the better qualified Mr. Jose

Carrasco for legitimate, non-

discriminatory reasons. The panel made it

clear that plaintiff was not the second

choice for the job; in fact, plaintiff

ranked eighth or ninth in the field of

eleven candidates. Plaintiff has not met

caine

his burden of proving a pretextual reason

for discrimination. The Court finds no

evidence of retaliation under Title VII.

Plaintiff's claim of retaliatory non-

selection for promotion is hereby DENIED.

Each party is to bear their own costs.

SIGNED this 3lst day of October,

1989.

H.F. GARCIA

UNITED STATES DISTRICT JUDGE

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