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BRUEGGING v. BURKE

October 23, 1987

GARY J. BRUEGGING, Plaintiff,
v.
FRANK G. BURKE, Acting Archivist, ET AL., Defendants


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE.

 After a full bench trial and consideration of post-trial briefs, the Court enters the following findings of fact and conclusions of law in this handicap discrimination case.

 Mr. Bruegging is employed as a GS-9 in the Office of Federal Register ("OFR"), a unit of the National Archives and Records Administration ("Archives"). He is a qualified handicapped individual *fn1" by reason of his cerebral palsy which causes a hand tremor, affects his speech somewhat, and influences his gait.

 Mr. Bruegging contends he failed promotion because of his handicap on several occasions. He also urges that Archives has not fulfilled its affirmative action obligations as an employer in its relations with him as an employee under Section 501 of the Rehabilitation Act of 1973, as amended (29 U.S.C.A § 791 (1985 & Supp. 1987)).

 A routine prima facie case was established by showing that on several occasions Mr. Bruegging qualified for GS-11 vacancies that opened at OFR in the competitive service, that he applied but was not selected and a non-handicapped individual was chosen.

 In 1972 Mr. Bruegging began his career at Archives in a temporary position and by October 1976 was promoted to Legal Publications Specialist GS-9. In March 1977 his position was converted to the Career Competitive Service. On October 10, 1977 he became eligible to compete for GS-11 positions. Thereafter, he failed selection for GS-11 vacancies on five occasions he has placed in issue here between July 1984 and March 1987. He has remained a GS-9 and presently his position, as retitled, is Technical Publications Writer/Editor, OFR Finding Aids Unit, where he edits the table of contents of the daily Federal Register under GS-11 supervision and handles some of the many telephone inquiries.

 Mr. Bruegging and others in OFR working on the several publications of the Federal Register are held to an exacting, well above average standard of accuracy. These publications cannot serve their important governmental purpose if mistakes appear by way of miscitations, incomplete or incorrect cross-references, omissions, and the like. As a GS-9 Mr. Bruegging's work has been subject daily to detailed review for accuracy by others. As a GS-11 he would be personally responsible for final editing with direct authority to release material to the printer. His tendency on repeated occasions to make often significant errors has led selecting officials to choose other employee applicants over Mr. Bruegging, whose overall performance and accuracy were deemed clearly superior.

 Each GS-11 job for which Mr. Bruegging applied was such that accuracy was job related and outstanding ability in this regard was required as a matter of business necessity. The Court is wholly satisfied that the extensive testimony of the selection officials was in each instance credible. Each selection placed in issue by the complaint was thoroughly reviewed against underlying documents which completely reinforced testimony of the selecting officials and other supervisors. There was no evidence of discrimination. Their choice of others over Mr. Bruegging for superior accuracy and because of overall superior qualifications was not protected.

 Five selections for promotion to GS-11, each advertised by a Vacancy Announcement ("VA") are in issue in this proceeding, to wit: VA 84-12 (two selected July 19, 1984); VA 85-12 (three selected April 30, 1985); VA 85-24 (one selected May 14, 1985); VA 85-37 (one selected November 5, 1985); VA 87-12 (one selected March 12, 1987).

 One handicapped person (hearing) was chosen in VA 84-12. In VA 85-12 Mr. Bruegging was given priority consideration by reason of a union grievance but was unsuccessful after detailed and sympathetic consideration by the selecting official. Later, when his application was considered against competitors, he again failed selection. In VA 85-24 the selectee was handicapped from cerebral palsy and this selection cannot be considered because Mr. Bruegging never contacted the Equal Employment Opportunity Commission. In VA 85-37 and VA 87-12 neither selectee was handicapped. Three different selecting officials were separately involved in one or more selections.

 In all instances Mr. Bruegging was among the best qualified and his record was carefully reviewed. Competition for the positions was keen. The selecting officials were familiar with most applicants' work, partly because of the constant checking and cross-checking that occurs between GS-11 supervisors and GS-9's to eliminate errors and to be sure of absolute accuracy. In all instances the ratings of those selected were superior to Mr. Bruegging's ratings in significant respects. He lost out on the one occasion he received priority consideration under the union grievance procedure because his supervisor, who had worked with him to decrease errors and who had demonstrated unusual interest in creating job opportunities for handicapped persons, found him not qualified for GS-11 responsibility due to his inability to perform consistently accurate work and his substantial errors.

 This is an unfortunate case. Mr. Bruegging is a fine public servant. He has worked steadily and given satisfactory service. It is natural that his long tenure at GS-9 disturbs him. Others doing the same kind of work, both handicapped and nonhandicapped, have advanced to higher grades in much shorter time at OFR. But grade promotion in the competitive service is based on performance, not tenure. Accuracy is the number one critical element and an essential job requirement for a GS-11 working at OFR. It is apparent from concrete examples of Mr. Bruegging's day-to-day work and other proof of record that Mr. Bruegging has been unable to meet this crucial element of a GS-11 position. *fn2" Moreover, it must be noted that there is absolutely no clear proof *fn3" of any kind indicating that his lack of accuracy is the result of or related in any way to his cerebral palsy. Without such proof, there would not appear to be even a colorable case presented here.

 Given these deficiencies, plaintiff's counsel has taken an alternative approach which must be considered. His brief states that "affirmative action is the heart and soul of this case" (Plaintiff's Brief, p. 16), and urges that some effort beyond nondiscrimination and reasonable accommodation is mandated by the Rehabilitation Act of ...


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