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MORROW v. CROSBY

July 1, 1976

Gideon H. MORROW
v.
Philip CROSBY, Rear Admiral, S.C., U.S.N., Commanding Officer, et al.



The opinion of the court was delivered by: MCGLYNN

 McGLYNN, District Judge.

 INTRODUCTION

 Having exhausted the Administrative procedure, the plaintiff, a black male employee of the Federal Government, charging employment discrimination, brought this action alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-16(c) and 2000e-5(e); the Civil Rights Act of 1866, 42 U.S.C. § 1981; and the Civil Rights Act of 1871, 42 U.S.C. § 1983, seeking injunctive and declaratory relief as well as damages. Jurisdiction is invoked pursuant to 28 U.S.C. § 1343.

 The defendants' motion for summary judgment on the basis of the administrative record was denied on the authority of Sperling v. United States, 515 F.2d 465 (3d Cir. 1975) which held that a person charging discrimination in Federal employment was entitled to a trial de novo in the District Court. *fn1"

 At trial, both sides stated that they would rest on the record made at the Administrative proceedings *fn2" and would offer no further evidence.

 Upon review of the record and upon consideration of the briefs and arguments of the parties, the Court makes the following:

 FINDINGS OF FACT

 The Parties

 1. The plaintiff is Gideon H. Morrow, a black male citizen of the United States, whose place of residence is 2403 N. Broad Street, Philadelphia, Pennsylvania.

 2. The defendant, Philip Crosby, is the Commanding Officer of the Navy Aviation Supply Office (ASO), located at 700 Robbins Avenue, Philadelphia, Pennsylvania.

 3. The defendant, R. G. Heurich, is the Commanding Officer of the Naval Publications and Forms Center (NPFC), located at 5801 Tabor Avenue, Philadelphia, Pennsylvania.

 4. The defendant, Frank Robey, Jr., is the Chairman of the Employee Appeals Review Board, Department of the Navy.

 5. The defendant, William P. Berzak, is the Chairman of the Board of Appeals and Review of the United States Civil Service Commission, Washington, D.C.

 6. The defendant, The United States Civil Service Commission, Washington, D.C., is charged with the duty to hear and determine complaints of racial and sex discrimination against civilian employees of the United States Navy.

 7. The plaintiff has been in Federal Service for twenty-five years and, at the time of this complaint, was employed as a Supply Technician, GS-7, Data Control Division, Data Analysis Branch, ASO.

 Factual Background Re: The Promotional Advancement Opportunity

 8. On February 12, 1973, Rear Admiral W. R. Dowd, Jr. forwarded two letters, almost identical in content, one to defendant Crosby and the other to defendant Heurich authorizing the creation of a billet for assistant to the EEO Coordinator for the ASO and NPFC activities.

 9. As a result, defendant Heurich caused to be created a job description for the position of Personnel Management Specialist for NPFC.

 10. As a result of Admiral Dowd's letter, defendant Crosby caused to be created a job description for the position of Personnel Management Specialist for ASO.

 11. Thereafter, two positions were advertised for competition in Merit Promotion Announcement ASO/NPFC 73-3/T, dated February 23, 1973.

 The announcement contained the following language:

 
PERSONNEL MANAGEMENT SPECIALIST, GS-201-5 or GS-201-7 IN TRAINING FOR PERSONNEL MANAGEMENT SPECIALIST, GS-201-11 (2 positions). (Assistant to the EEO Coordinator and Federal Women's Program Assistant).

 12. One position was to be filled from the promotion register established in the ASO and the other position was to be filled from the promotion register established in the NPFC. (Actually, the two promotion registers were treated as one by the Selection Advisory Panels).

 13. Each activity established a Selection Advisory Panel to consider and recommend a candidate, from among those referred on the promotion certificates, to the respective selecting officials.

 14. Plaintiff applied for the positions.

 15. Plaintiff was rated highly qualified and ranked second on the ASO promotion certificate.

 16. A final screening produced thirteen best qualified candidates including plaintiff, Dorothy Brooks and Joan Harad.

 Plaintiff was the only male in this group of best qualified candidates.

 17. The ASO panel unanimously recommended Dorothy Brooks (white, female) for selection and their recommendation was approved by the ASO Commanding Officer, defendant, Crosby, on April 19, 1973.

 18. Mrs. Brooks filled the position at the GS-5 level, effective May 14, 1973.

 19. The NPFC panel unanimously recommended Joan Harad (white, female) for selection and their recommendation was approved by the NPFC Commanding Officer, defendant Heurich.

 20. Miss Harad filled the position at the GS-7 level, effective May 13, 1973.

 A. The Significance Of The Wording Of The Joint Merit Promotion Announcement And Related Literature

 21. The promotion announcement, ASO/NPFC 73-3/T, defines the position Personnel Management Specialist as: "Assistant to the EEO Coordinator and Federal Women's Program Assistant" while the job description states, in part: "Gives special emphasis to all aspects of the Federal Women's Program."

 22. Joint Instruction 12713.1E, dated July 1, 1970, covering the subject matter Equal Opportunity, describes the responsibilities of the Federal Women's Program (FWP) Coordinator. (A subsequent change reduced the title to FWP Assistant although the duties remained the same).

 23. Paragraph 4, subdivision i, page 3, of Instruction 12713.1E incorporates the pronouns "she" and "her" in describing the duties of the FWP Coordinator.

 24. This language did not preclude plaintiff from applying for or being considered for the positions noticed in ASO/NPFC 73-3/T.

 25. Joint Instruction 12713.1E also outlines the duties of the EEO Counselor position and the EEO Coordinator position using the masculine gender.

 26. Mrs. Lillian Gibson was the EEO Coordinator for ASO.

 27. The use of the masculine gender in the description of EEO Coordinator did not preclude Mrs. Gibson from becoming the coordinator of ASO.

 28. In addition, ASO had eight Counselors, half of whom were females and NPFC had five Counselors, ...


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