United States Court of Appeals, Tenth Circuit
Uploaded by
Scribd Government DocsUnited States Court of Appeals, Tenth Circuit
Uploaded by
Scribd Government Docs548 F.
2d 301
18 Fair Empl.Prac.Cas. 1323,
13 Empl. Prac. Dec. P 11,416
Stephen P. BLONDO, Plaintiff-Appellant,
v.
Benjamin BAILAR, Postmaster General of the United States
Postal Service, et al., Defendants-Appellees.
No. 75-1783.
United States Court of Appeals,
Tenth Circuit.
Argued and Submitted Nov. 19, 1976.
Decided Jan. 14, 1977.
James E. Hartley, Denver, Colo. (R. Brooke Jackson, Denver, Colo., on
the brief), for plaintiff-appellant.
Richard J. Spelts, First Asst. U.S. Atty., Denver, Colo., and John H.
Arbuckle, Regional Labor Counsel, U.S. Postal Service, San Bruno, Cal.
(James L. Treece, U.S. Atty., Denver, Colo., on the brief), for defendantsappellees.
Before LEWIS, Chief Judge, and McWILLIAMS and DOYLE, Circuit
Judges.
WILLIAM E. DOYLE, Circuit Judge.
Plaintiff-appellant, Stephen P. Blondo, a former employee of the United States
Postal Service, complains of adverse personnel action by the Postal Service. In
two separate claims he alleges, first, discrimination in federal employment in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
Section 2000e, et seq., and in particular Section 2000e-16 thereof. He alleges
improper and unfair evaluation, training and counseling and termination
because of his national origin or ancestry. The second claim for relief avers
arbitrary, capricious and wrongful actions by the Postal Service in violation of
5 C.F.R. Section 315.803 and Section 315.804; 5 U.S.C. Sections 4301 et seq;
and 5 U.S.C. Section 7501. Here there is no allegation of discrimination. In our
court plaintiff complains of rulings of the district court which he says impeded
"meaningful" pretrial discovery, and which denied plaintiff a trial de novo with
respect to either of his claims.
2
The district court made findings of fact in substance as follows:
Blondo is a United States citizen of Italian-Hungarian ancestry. Defendant
Bailar is a Postmaster General and Chief Executive Officer of the United States
Postal Service (which is an independent establishment and agency of the
Executive Branch of the United States with the Denver Division of the Western
Region at Denver, Colorado). On December 9, 1972, plaintiff received a career
appointment to the position of Cleaner, P.S. Level 1, a janitorial position with
the Postal Service. His assignment was to the Denver Terminal Annex and was
at an annual salary of $6,344. Thus, the court found, plaintiff was an employee
in the Postal Career Service, as described in 39 U.S.C. Section 1001(b).
Plaintiff's work consisted mainly of sweeping on the fourth floor of the
Terminal Annex.
Blondo's appointment was subject to successful completion of a 90-day
probationary period which commenced December 9, 1972. Such probationary
period would have ended on or about March 9, 1973 had he not been
discharged from the Postal Service on January 19, 1973. On January 19,
however, he received a letter from the Denver Postmaster which notified him
that he was discharged effective that same day. The letter stated:
5
This
letter is my notice that you will be separated from the Postal Service effective
Friday, January 19, 1973. You are being separated during your Probationary Period
for failure to meet the required performance standards of your position, and for
leaving your work area without permission. I regret that you have not met the
requirements of your position and that it is necessary to take this action. (Rec. on
App. Vol. IV, at 22).
6
Several incidents are assigned in the administrative record by the Postal Service
as causes of Blondo's being fired. Blondo was counseled four times because of
his job performance.1
Foreman Heard (see footnote 1) completed a job evaluation form on plaintiff's
performance in which he said that he was poor as to accuracy, reliability and
thoroughness; the quality of his work was below average; and his attitude,
conduct, neatness and cooperation with supervisors was poor; his safety record
and attendance were good. Heard recommended that he be separated. Parker
recommended his discharge and then Postmaster Cavender advised him that he
was being discharged. The trial court found against plaintiff on the question of
discrimination growing out of his ancestry, pointing out that there was no
specific instance furnished that would even suggest that this was the basis.
8
After the discharge appellant had filed a complaint with the EEOC in which he
claimed that his discharge was discriminatory grounded on his being a male
Caucasian Italian. This was investigated formally and resulted in the conclusion
that there was no discrimination. Informal adjustment efforts failed, whereby
the case was referred for review to the Assistant Western Regional Postmaster
General for Employee and Labor Relations. Mr. Costello, the official in
question, told plaintiff that review of the record did not support his contention.
Plaintiff then went to the Civil Service Commission, but here again he was
unable to find any consolation. He appealed to the Board of Appeals which also
made a negative determination. In all of these administrative proceedings
appellant represented himself. It was only after the present lawsuit was filed
that counsel was appointed.
A diligent effort was made by his appointed counsel to develop some facts.
Counsel on this appeal complain that they were impeded by the court in their
efforts to conduct discovery and also to get a trial de novo on both claims.
10
The court relied on Carreathers v. Alexander, Civil Action No. C-5082, in the
District Court for the District of Colorado which held that a federal employee is
not entitled to a trial de novo. The trial court here sought to follow a middle
course, whereby it relied on the administrative record and a limited amount of
testimony.
11
The trial court finally denied the request for trial de novo and at last reaffirmed
its position denying discovery. The only exception was that appellant was
allowed to testify and call three witnesses and to conduct limited discovery.
Review of these orders is sought as well as review of the other actions of the
court preceding the trial. The judgment of the court was that the plaintiff was
not entitled to recover on the discrimination claims and on the second claim,
the arbitrariness allegation, the court found that the plaintiff's rights in the light
of his probationary status were not violated.
12
The contentions referred to present to us the following issues:
13
1. Whether a discharged federal employee who claims to have been discharged
unlawfully on the basis of his national origin or ancestry, and who had fully
exhausted his administrative remedies under Title VII of the Civil Rights Act of
1964, as amended, is entitled to trial de novo in federal court of his employment
discrimination claims? Should discovery be limited at the trial in any fashion?
14
2. Whether 5 U.S.C. Section 4304(b) and Section 7501 and 5 C.F.R. 315.803
and 315.804 are applicable to probationary Postal Service employees.
15
3. Whether attorneys fees should be awarded at this time.
I.
THE TRIAL DE NOVO ISSUE
16
Issue number 1 set out above need not be labored because the Supreme Court
has clarified it in Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48
L.Ed.2d 416. The unanimous Court held that Section 717(c) of Title VII does
give a federal employee the same right to a trial de novo as is enjoyed by an
employee in the private sector. Thus, the case relied on by the trial court,
Salone v. United States, 511 F.2d 902 (10th Cir. 1975), is in effect repudiated.
The reason was that Congress by the 1972 Amendments equated a federal
employee's civil action with private sector plenary trials. Id. 425 U.S. 840, 96
S.Ct. at 1956. As a result of this Supreme Court action, counsel agree that this
first claim should be remanded in accordance with the Chandler decision.
17
Chandler also teaches that it is not appropriate to impose limits on discovery in
a federal employee case. Thus, plaintiff is going to have to have an opportunity
to fully develop the factual background of the case. Cf. the standards
mentioned in Rich v. Martin Marietta Corp., 522 F.2d 333, 342-345 (10th Cir.
1975), wherein the limits mentioned are relevancy and burdensomeness. The
trial court, of course, did not have the advantage of the Chandler case when the
question was decided and undoubtedly in the light of that case the court will
without extensive comment afford the plaintiff his rights in this regard.
II.
THE "ARBITRARY AND CAPRICIOUS" CAUSE OF ACTION
18
19
Next the plaintiff contends that the Postal Service failed to comply with several
statutes and regulations in the course of training appellant and finally
separating him. These are: 5 C.F.R. Section 315.803 and Section 315.804 (civil
service regulations pertaining to probationary employees); 5 U.S.C. Section
3321 (pertaining to periods of probation for employees appointed to the
competitive service); 5 U.S.C. Section 4301 et seq. (pertaining to performance
ratings of employees of federal agencies); 5 U.S.C. Section 7501 (pertaining to
removal or suspension of employees in the competitive service); and 5 U.S.C.
Section 551 et seq. (the Administrative Procedure Act), particularly Section
706 (pertaining to review of agency action which is arbitrary or capricious).
20
The trial court, however, ruled out the application of the provisions on the
ground that they did not apply to the Postal Service because of 39 U.S.C.
Sections 101 et seq. and especially Section 410. Plaintiff disputes the
determination made particularly as to 5 U.S.C. Section 4304(b) and Section
7501.
21
The Postal Service's position is that the 1970 Postal Reorganization Act (PRA),
39 U.S.C. Sections 101 et seq. has removed the Postal employees from the
competitive Civil Service system. From a reading of these various statutes, it
would appear that the Postal Service is correct that the employees are not part
of the competitive Civil Service system.
22
We note that the Civil Service statutes as the same are modified by the
Collective Bargaining Agreement are inapplicable to the Postal Service
employees as far as the right to procedural recognition in terms of hearing, etc.
23
We are also mindful that the appellant in this case is a probationary employee
and that his rights are limited to a greater extent than permanent employees.
24
We have not considered the demand of appellant for the award of attorney's
fees since it does not appear that this was ever raised in the trial court, and
accordingly, it is not appropriate for this court to consider the problem.
25
The judgment of the district court is affirmed in part and is reversed and
remanded for new trial insofar as Count I is concerned, based on the fact that
the Chandler decision was announced after the district court judgment was
entered and before the cause came before this court on appeal. The parties have
stipulated that this requires that the appellant be given a plenary trial on his
Title VII claim. It is so ordered.
On December 28, 1972, Foreman Heard counseled him. He told Blondo that
his work was not meeting the standards of a Postal Service cleaner, that he was
too slow, and that he would have to improve. In a memorandum of that date,
Heard advised Superintendent Parker of the content of the counseling
discussion
Parker testified that early in 1973 he discussed plaintiff's work performance
with him, advised him that his work was not up to standard, and that he would
be dismissed if his performance did not improve. (Rec. on App. Vol. V at 35).
On January 6, 1973, Foreman Carr found plaintiff seated and talking to another
employee in a room set aside for meals and coffee breaks at a time when he
was supposed to be at work. Carr counseled plaintiff regarding this matter and
ordered him back to work. He also submitted a memorandum to Superintendent
Parker regarding the incident and counseling. Carr testified at the
administrative hearing that he also counseled plaintiff on another occasion for
safety hazards in the manner in which plaintiff carried his broom.
On January 8, 1973 Foreman Heard again counseled Blondo regarding his poor
work. On that day he sent a memorandum to Parker stating that plaintiff's work
was unsatisfactory as he had poor work habits, was too slow, made no effort to
improve, and did not clean the areas assigned to him. Heard also stated that
plaintiff would be found working in an area not assigned to him, and when
asked why he was doing so, would give Heard a "smart answer."
