Appeal from the United States District Court for the District of Oregon (Portland); Robert E. Jones, District Judge Presiding; D.C. No. CV-90-00963-JAR.
Browning, Reavley,*fn** and Norris, Circuit Judges.
John D. Morris sued the Bonneville Power Administration (BPA) under the Rehabilitation Act for discrimination based on his record of mental impairment. He also sued the BPA under the Administrative Procedures Act, contending that the BPA did not accord him the appropriate preference, as a formerly disabled veteran, required under 5 U.S.C. §§ 1302(b), 2108 and 3309. The district court denied relief under the Rehabilitation Act, but held that the BPA did not accord Morris the appropriate preference under the laws governing the veteran's preference. The court ordered the BPA to offer Morris the next available job in his field. Morris appeals, contending that the court erred in not awarding relief under the Rehabilitation Act. We affirm.
John Morris is a veteran with 14 years of service in the Navy. In 1970 he was diagnosed as a paranoid schizophrenic and was hospitalized for 30 days and found unfit for service. He was rated 30% compensably disabled by the Veterans Administration on November 18, 1970, but his service compensable disability was reduced to 0% on November 1, 1976. The Veterans Administration recognized his service connected disability in 1985.
In the Navy Morris worked as an electrician, and he worked as an electrician in the private sector from 1972 to 1978. In 1978 Morris took a job as a Power System Electrician with the BPA. He left the BPA in 1982 for personal reasons. He applied to work there again in 1983 and worked there as a temporary Power System Electrician for six months in 1984, for six months in 1985, and for one year in 1987. During this time, Morris received favorable ratings from his supervisors.
In November, 1987 Morris was considered for a permanent position as a Power System Electrician in Vancouver, Washington. The selection process for that position is the subject of this lawsuit. Morris and the other candidates for this position were ranked according to a rating based on the raw score they received on a technical exam, with additional points granted for veteran's preference. Several of the other candidates were given five additional points as veterans. Morris was the only candidate given 10 additional points because he was a disabled veteran. See 5 U.S.C. § 3309. Morris' raw score was 82, but with the additional points his total rating was 92, making him one of the three applicants with the highest overall rating. There were eleven applicants considered for a total of nine positions. Only Morris and one other applicant, who was not a veteran, were not hired.
The BPA followed a "rule of three" in selecting from the applicant pool. This meant that the BPA supervisor making the hiring recommendations would look only to the top three candidates and could select any of those three for the job in question. The only restriction in hiring from that three-person pool was that the supervisor could not choose someone without a veteran's preference over someone with a veteran's preference. The two persons not selected would then be eligible during the next selection round and would compete with the fourth person on the list. The two applicants not selected in this round would then be eligible and would compete with the fifth person on the list. After three rounds, if still not selected, a person would no longer be considered.
Morris' ten points for his veteran's preference put him in the first three rounds, but he was not selected. In each round another preferred veteran was selected, but none of these veterans were disabled veterans, and therefore, their ratings were only inflated five points above their raw scores. In the second and third round the candidates selected had lower overall ratings than Morris (both with 90 compared to Morris's 92), but in all three cases the persons selected had higher raw scores on the technical exam. Apparently, the supervisor making the selections, Keith Rivers, gave preference to veterans over nonveterans, but chose among veterans based solely on the raw scores. In later rounds people without any veteran's preference were hired because in those rounds none of the three candidates had veteran's preferences.
Under this selection procedure, a person entitled to a ten-point veteran's preference (generally speaking a disabled veteran rather than a veteran without a disability) was inherently disadvantaged because he would be grouped with those with the highest overall rating, but would probably never be selected because the person doing the selecting would always chose the veteran with the highest raw score. Since five-point veterans only had five points added to their raw score, they would always have higher raw scores than ten-point veterans. This is what happened to Morris. If he had only received five points for his veteran's preference, he would have been considered in the later rounds and would have been competing with those with more comparable raw scores and would probably have been selected.
Morris complained to the BPA about the selection process. Morris testified that he was told that since he had already filed an EEOC complaint alleging handicap discrimination in 1986, he did not have to file again with the BPA and should take his complaints to a "higher authority," which apparently meant the Office of Personnel Management.*fn1
The district court did not call a jury. Instead, the Judge heard all the evidence and concluded that a jury trial was unnecessary because there was insufficient evidence of intentional discrimination as a matter of law. The district court found that the selection procedure used by Rivers did not give Morris fair consideration and discriminated against the ten-point veteran. The court concluded that Morris was not selected for the position while others who had no record of any handicap were selected and that the BPA produced no evidence of a legitimate, non-discriminatory motive for failing to select Morris. The court also concluded, however, that the BPA did not intentionally discriminate against Morris because of his record of mental handicap and it did not pursue a policy or selection process which had an adverse impact on plaintiff because of his record of mental impairment.
The district court concluded that Morris could recover under the Administrative Procedures Act, 5 U.S.C. § 706, because Rivers' reliance on the raw technical scores in selecting among the three relevant applicants was arbitrary, capricious, and an abuse of discretion in violation of the laws governing the veterans preference, 5 U.S.C. §§ 1302(b), 2108, 3309. The court also concluded that the BPA violated 5 U.S.C. § 3317(b) by removing Morris' name from future eligibility for employment as a Power System Electrician without notifying him in advance as that statute requires. The BPA was therefore ordered ...