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NANCE v. LIBRARIAN OF CONGRESS

March 24, 1987

Ernest Nance, Plaintiff,
v.
Librarian of Congress, Defendant


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT COURT

 This Title VII race discrimination case came before the Court for a de novo hearing after plaintiff, a black, had exhausted his administrative remedies. *fn1"

 The undemanding burden of establishing a prima facie case was met at the outset as many facts essential for this purpose were stipulated. Plaintiff, Mr. Nance, was a police officer employed by the Library of Congress. He applied for either of two vacancies simultaneously announced by the Library for the position of Facility Manager, GS-9. He was one of nine applicants considered qualified and was interviewed for both the positions. Mr. Nance was not selected. Both positions were filled by white male applicants. The selecting official felt he was less qualified than the selectees, Walter L. Hynson and James W. Ferguson. Mr. Nance presented expert testimony supporting his claim that this reason was a pretext and he testified to aspects of his interview and experience as a Marine First Sergeant responsible for aspects of building maintenance. *fn2"

 After a full trial, Mr. Nance's contentions must be examined to determine whether or not he has carried his ultimate burden considering the record as a whole. His counsel offered two primary lines of proof: first, expert testimony was presented rating the qualifications of Mr. Nance superior to the selectees by comparing the Form 171 applications against the Vacancy Announcement; and second, testimony of a few employees was presented designed to suggest that Gerald Garvey, the selecting official, was racially biased.

 The expert testimony proved to have no probative value and the Court can give it no weight. Mr. Nance's expert presented himself as a rating specialist. His qualifications in this regard were marginal. He had had no experience rating employees of the Library of Congress. He did not know the nature of the Facility Manager's duties, except as they were suggested by the Vacancy Announcement. He made inaccurate assumptions as to what qualities the job entailed, without even knowing the facilities involved or the actual functions of a Manager. Although purporting to base his analysis only upon the written Form 171 applications of the competing candidates, he did not do so, but used information obtained orally from Mr. Nance or based on his own military experience. His conclusions were far from useful because he was unable to provide specific numerical ratings -- only ratings in broad and therefore unpersuasive ranges.

 Moreover, the proof is clear that rating procedures were not used in the selection process under review at any stage nor was the Library required to use them. If they had been used they could not have been brought to the attention of the selecting official in any event. Ratings are useful primarily to identify those most qualified and thus eligible for interview. Mr. Nance was interviewed. Ratings are, moreover, mechanical and of little value in identifying desired characteristics among qualified applicants. Often, throughout many branches of the federal service, the candidate rated highest on paper is not the candidate who, at the conclusion of an interview, is found most suitable for the vacancy. Inadequate vacancy announcements are often used and they tend to exacerbate the spread between the initial impression of a rater and the final result.

 Thus, the precise issue here is whether or not the selecting official, Mr. Garvey, gave pretextual reasons for choosing two whites instead of Mr. Nance. This is a direct challenge to Mr. Garvey's credibility since he testified at considerable length, stating obvious relevant reasons for making the selections he did based largely on uncontroverted facts reinforced by the 171s. Although he was fully cross-examined, his position was not undermined.

 No basis for disbelieving Mr. Garvey's testimony was presented after consideration of the Vacancy Announcement and his undisputed elaboration of the job requirements. He rejected Mr. Nance's application for two basic reasons.

 Moreover, as Mr. Garvey pointed out, Mr. Nance's military record revealed that his activities had not acquainted him with health and code regulations applicable to daily management of a library facility, with cleaning techniques and electrical hookups involved, or with various types of problems that might arise. Mr. Nance had relied on others not under his direct supervision to carry out these and other management functions. Thus he was viewed by Mr. Garvey as having been a user rather than a building operator. Because he had not been a true building manager but relied wholly on others he called in to do the work, and otherwise lacked hands-on knowledge, Mr. Garvey found his qualifications inadequate.

 Second, Mr. Garvey pointed out that both whites selected had far more direct hands-on experience with aspects of building management and far more knowledge of health, OSHA and building codes, and were better equipped to handle electrical, humidity and similar problems coming to the attention of a Facility Manager at the Library. Their direct supervisory experience was greater. Neither had difficulty communicating.

 In short, Mr. Garvey testified that he filled the two positions with the applicants he believed were best qualified. He indicated that Mr. Nance had a poor interview and exhibited a definite lack of knowledge of elements which he would have to deal with on the job. After all these years Mr. Nance's recollection of the interview is vague and the Court finds it unacceptable.

 Mr. Garvey's appraisal of the successful applicants is fully supported by the record, as a comparison of the respective applications of Mr. Nance and the selectees demonstrates. One selectee, Mr. Hynson, was over-qualified in respects which greatly enhanced his value to the Library, as is evident when his outstanding record is measured against the Vacancy Announcement. He was soon hired away from the Library by the Architect of the Capitol into a high-level position. Mr. Ferguson had management experience more closely related to the position than Mr. Nance, and at the interview made a better impression on Mr. Garvey. ...


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