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ESTES v. SPENCE

January 14, 1972

Harry A. ESTES, Plaintiff,
v.
Adolphus N. SPENCE, II, et al., Defendants


Parker, District Judge.


The opinion of the court was delivered by: PARKER

Findings of Fact

 PARKER, District Judge.

 1. This is a suit by a losing candidate for promotion in the Government Printing Office (GPO) to set aside the promotion of the successful candidate, alleging that it was in violation of GPO and Civil Service Commission (CSC) regulations, the Administrative Procedure Act, and due process of law.

 2. The plaintiff Harry A. Estes was at all relevant times the Assistant Foreman in the Letterpress Division at the defendant Government Printing Office.

 3. The defendant GPO is an agency of the United States Government, existing and operating pursuant to 44 U.S.C.A. § 301 et seq., and is the employer of plaintiff Estes. The defendant Adolphus N. Spence, II is the Public Printer, the chief administrative officer for the GPO. He is the successor-in-office to James L. Harrison who at all material times was the Public Printer. Defendants Robert E. Hampton, James E. Johnson, and L.J. Andolsek collectively constitute the defendant United States Civil Service Commission (CSC), with plenary power to administer the several federal civil service laws and regulations, including the federal merit promotion program, and with full authority to effect the relief requested herein.

 4. On December 10, 1968 the then Public Printer Harrison confirmed the promotion of one Kenneth Peck as Assistant Superintendent of the Letterpress Division, effective January 12, 1969.

 6. Federal Personnel Manual and GPO promotion regulations effective at the time of Mr. Peck's promotion emphasize the importance of sufficient employee knowledge of job vacancies and promotion requirements and procedures. This is to insure adequate opportunities for eligible candidates to apply, provide accurate and up to date information on each candidate's qualifications, and foster employee confidence in the fairness of agency promotion programs. Federal Personnel Manual, Chapter 335, Subchapter 2, Section 2-2d (September 20, 1968); Subchapter 5, Section 5-2a(1) (September 20, 1968); and GPO Personnel Bulletin No. 65, Supplement No. 3, Revision No. 1 (October 26, 1960). Subsequent amendments to the Federal Personnel Manual strengthen those provisions. Chapter 335, Subchapter 3, Section 3-4b(1) and (2) and Section 3-4(c) (March 9, 1971).

 7. The Superintendent of the Letterpress Division, Howard Amos, submitted to the Director of Personnel the names of ten candidates to be considered for the promotion. Mr. Amos also reviewed all evaluations made by candidates' supervisors prior to submission of the evaluations to the "promotion panel." One of these evaluations was by Mr. Fanning whose retirement precipitated the opportunity for promotion. Mr. Fanning indicated that Mr. Estes "would be a good supervisor." He also indicated that Mr. Peck "would be one of the best" as a supervisor.

 8. Mr. Amos selected two members of the promotion panel -- Mr. Leonard T. Golden, Superintendent of Composition, and Mr. Wallace L. Burton, Deputy Production Manager. The third member of the panel, appointed by the Director of Personnel of the GPO, was Arthur Mellor. However, GPO Personnel Bulletin No. 65, Supplement No. 3, Revision No. 1, October 26, 1960, provides, in pertinent part:

 
"I. Evaluation Techniques
 
A promotion Panel consisting of a staff member on the Division of Personnel and two members from within the Production Divisions or the Administrative Divisions designated by the Division Head will be utilized to determine the best qualified employees. One member of a Panel will rate employees for review by other Panel Members."

 Mr. Amos did not have authority to appoint the panel. (GPO Hearing Transcript, p. 49.) It was Mr. Luther, the Production Manager's responsibility.

 9. The promotion panel did not give plaintiff credit for certain military leadership and supervisory experience and commendations, all of which the plaintiff contends were relevant and material to his potential for effective performance in the position to be filled. (GPO Hearing Transcript, pp. 70-72.) But Civil Service Commission Handbook X-118, Part II, Section II, July 1967, provides in pertinent part:

 
"All valuable experience and training of the quality and type specified in the standard, including experience and training gained in religious, civic, welfare, service and organizational activities, is considered in determining qualifications regardless of whether or not any compensation was received. . . ."

 And Appendix A to Part II of Civil Service Commission Handbook X-118, October 1961, provides, in pertinent part:

 
"Information about incentive awards and letters of commendation received should be available to the appointing officials."

 See also Federal, Personnel Manual, Chapter 335, Subchapter 3, Section 3-6g (March 9, 1971).

 
"At the discretion of the Director of Personnel, written tests will also be given to assist in the evaluation of employees. Results of tests will be combined with ratings on the foregoing factors to form a composite rating. Personal interviews may also be used by the Promotion Panel if necessary to make a complete evaluation of employees."

 And Civil Service Commission Handbook X-118, Part II, Section IV, March 1970 provides in pertinent part:

 
"The Commission does not normally require that an agency administer a written test in in-service placement actions if the agency can satisfactorily determine the employee's ability to do the job to be filled through some other means, such as from his previous employment background. . . ." (Emphasis in original.)

 11. GPO did publish minimum promotion qualifications in GPO Personnel Bulletin No. 105, June 1, 1956, and GPO Personnel Bulletin No. 65, Supplement No. 3, Revision No. 1, October 26, 1960, Paragraph "H", and certain factors to be considered in evaluating employees and determining their standing on the promotion roster, GPO Personnel Bulletin No. 65, Supplement No. 3, Revision No. 1, October 26, 1960, Paragraph "I". However, the evaluation methods by which the promotion panel converted its numeric evaluations into non-numeric conclusory categories and rankings were not formally spelled out nor were they articulated until after the Estes promotion. (GPO Hearing Transcript, pp. 67-69.) The Federal Personnel Manual, Chapter 335, Subchapter 3, Section 3-8a, March 9, 1971 provides, in pertinent part:

 
". . . In recognition of the importance of supervisory positions and of their particular requirements, special and distinctive procedures must be established for identifying and evaluating persons with supervisory abilities and potential. The procedures must be based on supervisory qualification standards published by the Commission (See CSC Handbooks X-118 and X-118C) or on principles and methods equivalent to those outlined in the standards. . . ."

 And Appendix A to Part II of Civil Service Commission Handbook X-118, provides, in pertinent part:

 
"In dealing with its own employees, however, the agency must recognize the existing employment relationship and the nature of the commitments between the employees and the agency. . . . The [evaluation for promotion] methods used help determine whether the employee will consider the organization fair or arbitrary in its treatment of employees."

 12. The panel submitted the list of ten candidates, which included the names of Mr. Peck (second) and Mr. Estes (third), in ranking order to the Personnel Office. The Personnel Office unranked the names and submitted the top five in alphabetical order to Mr. Amos. The list of the top five included the names of Mr. Peck and Mr. Estes. However, GPO Personnel Bulletin No. 65, Supplement No. 3, Revision No. 1, Paragraph "I" provides, in pertinent part:

 
"The names of the highest five employees in ranking order will be submitted to the Division Head where the vacancy exists. . . ."

 13. Mr. Amos selected Mr. Peck, although Mr. Luther, the Production Manager, was the appropriate selecting officer. (GPO Hearing Transcript, p. 81, cross-examination of Edward A. Blatt, Chief of the ...


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