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August 8, 1978

Dennis R. CINTRON, Plaintiff,
Brock ADAMS et al., Defendants

The opinion of the court was delivered by: GREEN



 Plaintiff, a Spanish-speaking, Spanish-surnamed male of Puerto Rican origin, has brought this action against defendant, Secretary of Transportation, pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. ยง 2000e, Et seq. He alleges that he was discriminated against in his employment on the basis of his national origin. He was employed as a GS-12 Computer Specialist with the Transportation Computer Center (TCC) and its predecessor organization, the Computer Services Division (CSD) of the Federal Highway Administration (FHWA), a component of the Department of Transportation (DOT).

 Plaintiff alleges he was the victim of discriminatory treatment because he was not selected for either of two GS-13 Computer Specialist positions which became vacant during his tenure with the agency. He contends that (1) an "assessment of potential" completed by his first-line supervisor and submitted to the panel considering applicants for the two GS-13 vacancies was not consonant with his prior "annual performance" ratings by the same supervisor; (2) that three of the categories used to rate the candidates resulted in a subjective and biased evaluation of plaintiff; (3) that plaintiff's annual performance evaluations for 1974 and 1975 did not accurately reflect the level of his performance; (4) that he was relieved of several projects which had been assigned to him prior to their completion; and (5) he was subjected to continual harassment and surveillance by supervisory personnel, all resulting in his constructive discharge. Plaintiff seeks declaratory and injunctive relief, back pay, and reinstatement.

 This matter came before the Court on June 15 and 16, 1978 for a trial De novo. Chandler v. Roudebush, 425 U.S. 840, 96 S. Ct. 1949, 48 L. Ed. 2d 416 (1976). Following presentation of plaintiff's case-in-chief, including the testimony of plaintiff, the testimony of his other witnesses, exhibits, and arguments of counsel for both parties, the Court concluded that upon the facts and the law, plaintiff was not entitled to relief. Accordingly, defendant is entitled to judgment pursuant to Rule 41(b) Fed.R.Civ.P. *fn1" As a basis therefor, the Court makes the following:

 Findings of Fact

 1. Plaintiff was born in Santurce, Puerto Rico. He has spoken Spanish fluently since childhood, primarily with members of his immediate family.

 2. Plaintiff began his employment with the FHWA, CSD, in June 1968 as a Computer Systems Analyst, GS-9. He was promoted to a GS-11 Computer Systems Analyst in July 1969, and to a GS-12 Computer Specialist in November 1970.

 3. From the time that plaintiff began working at FHWA, he was taking courses leading toward a Masters Degree in Business Administration on a part-time basis at the University of Maryland. The total cost of tuition and books for plaintiff's Master's Degree was paid for by FHWA. Plaintiff took annual leave to attend classes. He admitted receiving a letter of reprimand from his supervisor for occasionally arriving late for work or sometimes not at all, following his classes. In November 1971, he received his Degree.

 4. In July 1974, the Computer Services Division was reorganized and plaintiff was transferred to the FHWA Transportation Computer Center.

 5. Between his entry on duty in June 1968 and July 1974, plaintiff had several first-line supervisors, including Jack Reinhart, Jim Ryan, Theral Neilson and finally, Jerry Willey. In July 1974, plaintiff came under the immediate supervision of Raymond W. Smith.

 6. Approximately four months later, Mr. Smith prepared an annual "performance evaluation record" of plaintiff (hereinafter referred to as the "1974 rating"). With regard to plaintiff's skills, knowledge and abilities (Part IV of the evaluation), Mr. Smith evaluated plaintiff as outstanding in seven out of a possible eleven rating factors in the nonsupervisory category. For the remaining four factors, plaintiff received an above average rating.

 7. Following a discussion between plaintiff and Mr. Smith concerning his 1974 rating, Mr. Smith raised plaintiff's rating with regard to Item 1, "knowledge of principles and practices in own area of work", and Item 2, "understanding of work related to, but not outside of own specialty or technical area," from above average to outstanding. Smith later reconsidered the evaluation of plaintiff and entered the following remark on the 1974 rating:

"When Mr. Cintron and myself discussed this evaluation on October 30, 1974, I was persuaded to increase Items 1 and 2 of Part IV to Column D (outstanding). However, after reflecting on this overnight, I cannot in good conscience justify those changes. Therefore, I had a new DOT Form F 3430.1 prepared and completed it as originally evaluated on October 30.
Raymond W. Smith
K.K." *fn2"
8. With regard to plaintiff's performance (Part II of the evaluation), Mr. Smith's conclusions were that he "far exceeds requirements" as to timeliness of work and "exceeds requirements" as to quality and quantity.
9. On November 11, 1975, Mr. Smith prepared a second performance evaluation record on plaintiff (hereinafter referred to as the "1975 rating"). In the eleven categories in which plaintiff was again rated as to his skills, knowledge and abilities in the nonsupervisory category, he received an outstanding ...

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