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07/01/81 Secretary of the Army v. Secretary of the Army

July 1, 1981




Before TAMM and MIKVA, Circuit Judges, and PHILIP NICHOLS, Jr.,* Judge, United States Court of Claims.

Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 78-0187).



In this case plaintiff Virginia M. St. Peter alleges the violation of Title VII of the Civil Rights Act of 1964 by Army officials in their promotion of a male, rather than the plaintiff, to a civilian GS-12 position in the United States Military Personnel Center in Alexandria, Virginia. The case was tried before a United States Magistrate who recommended judgment for the defendants; this recommendation was adopted by the district court. Plaintiff attacks this decision on several grounds. Because we find no prejudicial error in the proceedings, we affirm the judgment for the defendants. I. BACKGROUND

A. The Selection Process

In August of 1976, the position of Chief of the United States Military Academy Section (Chief, or Chief of USMAS), Officer Accessions Branch, of the Officer Personnel Management Directorate , was vacant. The Chief of USMAS is responsible for directing the nomination process for the United States Military Academy at West Point. The Chief makes annual requests for submission of nominations by nominating authorities and determines the eligibility of applicants for certain nominations. The Chief of USMAS also deals with nominating officials, including members of Congress, their staffs, and other high-level government and military officials.

A formal selection procedure was used to fill this position. Initially, a rating and ranking panel selected five candidates it considered "best qualified," including both the plaintiff and Thomas K. Staples, the eventual selection; these candidates were then interviewed by a two-member committee. The final selection decision was made by Lt. Col. Vespia, a member of the interviewing committee and assistant to Col. Hornish, the selection supervisor. Vespia tentatively selected Thomas Staples as Chief of USMAS; Staples was never informed, however, of that decision. Instead, because of several procedural irregularities, and perhaps because St. Peter filed a charge of discrimination, the entire process was voided. *fn1

A voluntary equal employment opportunity officer, Michael Berger, investigated St. Peter's initial charge. Vespia told Berger that he had been looking for someone who would fit his image of a West Point cadet, and Berger concluded that either Vespia or OMPD preferred a man for the job. At the close of his investigation, Berger recommended to Carol Burnette, the MILPERCEN civilian personnel officer involved in this selection, that the procedure be changed and that St. Peter be reconsidered.

The second procedure for filling the position also began with a rating and ranking panel. This panel again selected the "best qualified" candidates, including St. Peter and Staples, although this time there were nine such candidates. The interviewing committee for this round consisted of three men, none of whom had been on the previous interviewing committee, and included Col. Hornish, the selection supervisor. Because the original selection procedure had resulted in a charge of discrimination, Carol Burnette, the civilian personnel officer, witnessed the interviews as an impartial observer. The final selection was made on the basis of the performance of the candidates during these short interviews. *fn2 Col. Hornish and the other interviewers were unanimous in their selection of Staples as Chief of USMAS.

B. The Proceedings Below

On September 10, 1976, plaintiff filed a formal charge of discrimination with the United States Department of the Army. She alleged that the selection of Staples for Chief of USMAS had resulted from intentional discrimination on the basis of sex. On December 23, 1977, the Department made a final determination that there had been no discrimination. St. Peter filed a complaint in the United States District Court for the District of Columbia on February 1, 1978. By agreement of the parties, the case was tried to a magistrate; the trial was held on May 7, 8, and 9, 1979.

During the trial, the magistrate heard the testimony of the key actors in the selection procedure. Witnesses included an expert on the personnel records used by the rating and ranking panel, the equal employment opportunity officer who investigated St. Peter's first charge of discrimination, the three members of the second interviewing committee, the civilian Army Personnel Staffing Specialist who observed those interviews, St. Peter, Staples, and two of the other candidates for the job. The magistrate learned that St. Peter had served over twenty years in the Army in a variety of responsible positions and, after retiring from the Army in 1967, had been employed in several responsible civilian positions.

After reviewing all of the evidence, the magistrate entered findings of fact and conclusions of law. She found that the plaintiff and several of the other candidates were "far better qualified for the position" than was Staples. Joint Appendix at 27. But see note 4 infra. To support this conclusion, she pointed to St. Peter's longer career and superior formal education as well as her experience in dealing with high-ranking officials. In contrast, she noted that Staples had started at MILPERCEN as a clerk-typist in 1964 and had only a high school education enhanced by Army courses. *fn3 The magistrate also found that the selection process was inefficient and arbitrary, and that men as well as women were disadvantaged by it.

In her conclusions of law, the magistrate held that the plaintiff had established a prima facie case. On the ultimate question of discrimination, however, the magistrate found that the selection procedure was arbitrary, but not impermissibly discriminatory. The magistrate therefore ruled in favor of the defendant and dismissed the plaintiff's complaint on July 9, 1979. On August 16, 1979, the ...

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