however, would be less significant than officials of defendant whose names are mentioned frequently in Toliver's papers and are obviously known to him. There is no claim here or in any papers filed suggesting that depositions of such persons were sought and denied, or scheduled but not taken.
Toliver further complains that defense counsel coached witnesses during depositions, but does not appear to have contacted the Magistrate Judge for relief. Moreover, Toliver does not set forth any particular answers of the witnesses which he contends should be discounted or the opposite of the answer deemed the truth.
Toliver states that on more than one occasion witnesses were told not to answer, but does not appear to have sought relief from the Magistrate Judge to obtain the answers if relevant. Toliver also fails to set forth the nature of the unanswered questions or what the answers might have shown.
If a party - even one appearing pro se - could successfully permit discovery to be completed without seeking relief at the time, but effectively complain of deficiencies in the discovery process for the first time in seeking reconsideration of a grant of summary judgment to the adversary, litigation could hardly ever be concluded.
Toliver complains that the Magistrate Judge had told him not to talk with employees of the defendant outside the deposition room, but never appealed to me from any such ruling at the time. Moreover, he does not show that he could not ask during the deposition any questions he would have asked at some other time. Such an instruction if given by Magistrate Judge Fox might serve a mutually beneficial objective in avoiding potential confrontations between plaintiff and employees of the defendant.
The weight of authority indicates that Toliver, as a party representing himself and hence functioning as an attorney, would be permitted to approach former but not current employees of defendant directly, outside any formal setting such as a deposition or judicial forum.
There is no indication that any instruction given by Judge Fox barred Toliver from contacting former employees of defendant.
Toliver argues that defendant could not properly utilize prior supervisory experience involving the population served by an agency in evaluating applicants for supervisory positions, because this is not listed as a requirement in any job description or other document. Prior experience in a specific activity would appear relevant to choice among applicants for work involving that function, although like other facially legitimate criteria it could be shown in proper circumstances to have been used as a pretext for illegal discrimination.
Even stray remarks can, depending on the circumstances, become important evidence of pretextual conduct. See Ostrowski Ins. Co. v. Atlantic Mutual Companies, 968 F.2d 171, 182 (2d Cir. 1992); see also Kirschner v. Office of the Comptroller, 973 F.2d 88 (2d Cir. 1992). No indicia of pretext has been presented with respect to defendant's consideration of specific supervisory experience involving the target population in selecting supervisors.
It is not a violation of Title VII for an employer to utilize an undocumented criterion not described on paper in choosing the best applicant to fill a job, especially a supervisory position. Subjective evaluation can also be part of a selection process without for that reason violating the statute, but cannot be allowed to become a pretext for illegal discrimination based on race or other forbidden criteria. See Watson v. Ft. Worth Bank & Trust Co., 487 U.S. 977, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988); Mertens, "Watson v. Fort Worth Bank & Trust," 14 Employee Rel. L.J. No. 2 at 163 (Fall 1988). Were the contrary the rule, 42 USC § 2000-e and Title VII would become a collective straitjacket requiring extensive paperwork to justify otherwise proper employment decisions; there is no indication that this was the intent of Congress.
In other respects, Toliver's application for reconsideration restates his original contentions, somewhat altered to meet the conclusions drawn in my memorandum order of February 1, 1993. Based on the submissions of both parties which I considered on February 1, 1993, the background facts are undisputed. While Toliver had an opportunity to submit further information - his time to move for reconsideration was intended in light of his pro se status - he has not enhanced his position by restating facts already established. See Military Services Realty v. Realty Consultants, 823 F.2d 829, 832 (4th Cir. 1987). Toliver's original submissions which I relied upon in my February 1, 1993 memorandum order are thus as relevant now as then. See Bellino v. Schlumberger Technologies, 944 F.2d 26, 33 (1st Cir. 1991).
In considering the case as a whole, I am left with the clear conviction that no genuine issue of material fact is presented. It is undisputed that Toliver did not want to work full time, and obtained a dispensation to work part time which was in effect for a limited period. He then became involved in a dispute over use of sick leave. Toliver claimed illnesses excusing his presence at work without having sought medical advice. Even if the employer acted unwisely or erroneously, there is no indication that this dispute was manufactured as a pretext to dismiss Toliver because of his race after having retained him on the workforce for some time previously. Once Toliver was dismissed for what the employer considered sound (whether or not in fact erroneous) nonracial reasons, it not plausible
that shortly thereafter the same employer would rehire him as a supervisor.
Toliver's application for reconsideration ploughs broader ground. It is apparent that he sincerely believes that current efforts to overcome the heritage of discrimination are to a large extent mere "window dressing" (Toliver's application at 7). It would be easy to ignore this protest and decide this case on purely statutory grounds, but that would be to fail to confront Toliver's application in its full scope.
Antidiscrimination statutes can successfully preclude much discrimination based on forbidden criteria including race, but do not, in and of themselves, provide new opportunities necessary to overcome the drag created by past injustices. How the challenge of overcoming the residue of past injustices can best be met is a matter for the political branches and the public to decide; major efforts have been made at various times to deal with this critical subject.
Perhaps the Second World War was the Nation's most expansive affirmative action program, because everyone was needed - a reality setting the stage for the recommendations which ultimately led to the enactment of Title VII in 1964.
While the judiciary cannot meet this challenge or insure its resolution in a way satisfactory to Toliver or any other citizen, our Constitution and the judicial branch do protect the right of access to the political process where efforts to eliminate the drag-weight of the past can be creatively pursued.
Construing Title VII to permit suits under it where there is no genuine issue concerning facts from which one could reasonably infer discrimination on forbidden grounds would, however, retard rather than promote the objectives of the statute.
Dated: White Plains, New York
April 14, 1993
VINCENT L. BRODERICK, U.S.D.J.