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RABINOVITZ v. PENA

November 7, 1995

MARTIN RABINOVITZ, Plaintiff,
v.
HON. FEDERICO PENA, Secretary of Transportation, United States Department of Transportation, Defendant.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the motion of Defendant Federico Pena ("Pena") for summary judgment. For the following reasons, the motion is granted.

 I. BACKGROUND1

 Plaintiff Martin Rabinovitz ("Rabinovitz") unsuccessfully applied for two different managerial positions at the Federal Aviation Administration ("FAA"). In Count I of his Complaint, Rabinovitz alleges that the FAA denied him the positions because of his age and religion. In Count II, he alleges that the FAA constructively discharged him in retaliation for filing charges with the Equal Employment Opportunity Commission ("EEOC"). Defendant Pena contends that he is entitled to judgment as a matter of law because Rabinovitz cannot establish a prima facie case of discrimination or retaliation and has failed to proffer sufficient evidence to show that he FAA's reasons for his non-selection were pretextual. After a review of the following facts and the applicable case law, the court agrees that the instant case warrants summary judgment.

 Rabinovitz worked for the FAA at the Great Lakes regional office from 1976 until October 31, 1992, the date he alleges the FAA constructively discharged him. Rabinovitz was a real estate contract officer. Rabinovitz is of the Jewish faith and was 65-years-old in 1992.

 In June 1990, Rabinovitz applied for one of two vacancies within the Logistics Division of the FAA. Prior to applying for the position, Rabinovitz's supervisors rated him as "exceptional" on each yearly merit review. The position for which Rabinovitz applied was termed a Supervisory Realty Specialist ("SRS"). *fn2" Pursuant to FAA procedures, Rabinovitz submitted the proper SF-171 application form and written statements of knowledge, skills, abilities and other characteristics ("KSAOs") to demonstrate to a merit promotion panel *fn3" ("MPP") that he met the qualifications of the job.

 The MPP was composed of Janice Duckworth ("Duckworth"), an administrative officer in the Logistics Division, Barbara Dettmer ("Dettmer"), the civil rights staff designee whose responsibility was to ensure that no unlawful discrimination takes place during the selection process, and Gloria Ostrand ("Ostrand"), a personnel specialist familiar with the MPP rating process. Since all but one of the FAA employees possessing the necessary technical knowledge applied for the job, the branch manager designated Duckworth to fill-in as the technically-knowledgeable participant of the MPP. However, Duckworth was directed to discuss any technical questions that arose in an interview with the Real Estate branch manager, Robert Puoci. The MPP reviewed the responses and rated each applicant by first determining whether the applicant met the job requirements, and then assigning each applicant a score based on the written KSAO responses.

 The individuals eventually selected for the managerial positions received scores of 30 and 25 points. The MPP found Rabinovitz to be a qualified applicant and assigned Rabinovitz a score of 21 out of a possible 30 points. Rabinovitz's score was the lowest of the five qualified applicants for the position. Both Dettmer and Duckworth testified that there were no discussions of age or religion during the rating deliberations.

 After the MPP assigned each applicant a score, two FAA supervisors, Glen Timmerman ("Timmerman") and Robert Puoci ("Puoci"), interviewed the five qualified applicants. Timmerman and Puoci asked questions concerning managerial issues, supervisory and personnel policies, and the FAA's affirmative action program. After the interview, Timmerman and Puoci ranked the five applicants. Both ranked Rabinovitz last.

 After the MPP point designation and the interview stage, the Manager of the Logistics Division, Sandra Libby ("Libby"), was required to select the individuals to fill the two vacancies from the five applicants. Libby took no part in the previous MPP and interviewing process, and Libby did not know Rabinovitz prior to September 1990. Libby prepared a document comparing the applicants' SF-171 forms, comments by Timmerman and Puoci, the applicants' written KSAOs, the MPP rating panel evaluation, references from various managers in FAA, and her own personal observations of the candidates. In October 1990, without request and before Libby made her final determinations, Rabinovitz gratuitously informed Libby that he was a member of the Jewish faith. No other applicant mentioned a religious membership or faith. No interviewer ever inquired.

 On November 18, 1990, Libby selected Donald Russo ("Russo") age 41, and Robert Sipek ("Sipek"), age 37, for the two supervisory realty specialist positions. Before publishing her selections, Libby consulted with her predecessors at the Logistics Division, Thomas Busker ("Busker") and James Washington ("Washington"), as to whether her selection decisions were sound. Both Busker and Washington agreed with her decisions. Libby was unaware of any of the other four applicants' religious preferences at the time of selection. Libby testified that she chose not to select Rabinovitz for two main reasons: because Rabinovitz's MPP rating was the lowest of the five candidates and because his interview responses were weak in the areas of supervisory experience and human relations. Libby further testified that when making her selections, she looked at the "big picture." Rabinovitz construes subjectively this statement to mean that "an old Jew like [him] self did not fit in," and is evidence of illegal discrimination. Libby personally told Rabinovitz of her selections and offered to assist him in his "promotability" by providing additional management training. Rabinovitz refused.

 Rabinovitz later filed the first of two formal complaints of discrimination with the FAA on December 10, 1990. This complaint alleged that Libby based her decision not to select Rabinovitz for the SRS position on his age and religion instead of his merits.

 In late November 1990, another position within the Logistics Division became vacant. The person holding this position, termed Realty Officer ("RO"), would supervise the two SRS positions for which Rabinovitz was denied. The position involved responsibility for planning, organizing, and directing the activities of the Real Estate Branch and determining regional program policy goals and plans as well as advising higher management officials in the areas of real property and utilities. The individual selected for the RO position would be responsible for supervising six realty specialists and a secretary.

 Rabinovitz applied for the position along with Russo and Sipek. Rabinovitz was among eleven of the thirteen applicants found qualified by the MPP and whose names were forwarded for selection. The MPP was comprised of Clark Young ("Young"), a civil engineer having the technical knowledge required by the job, Lynette Coleman ("Coleman"), a member of the civil rights staff, and Duckworth, designated by the Human Resources Division as the personnel member of the panel. Duckworth testified that the applicants' ages and religions were not discussed and had no affect on the MPP rating.

 Neil Johnson ("Johnson"), an engineer from Airway Facilities Division, and Michael Landon ("Landon"), the Logistics Division's Acquisition Branch Manager, interviewed the eleven qualified applicants in February 1991. Libby observed the interviews but remained silent. Both Landon and Johnson found that Rabinovitz was not the most qualified candidate of the eleven. Instead, Landon and Johnson both recommended Darrel Shepack ("Shepack"). Landon testified that although Rabinovitz had a significant amount of expertise in his field, he did not exhibit an expertise as a supervisor or manager. Johnson testified that Rabinovitz lacked sufficient knowledge of the various tasks and duties of a manager. Both Johnson and Landon testified that neither Rabinovitz's age nor his religion was a factor in their decision.

 On April 5, 1991, Russo, now Rabinovitz's new supervisor, rated Rabinovitz "fully successful," which is one rating lower than "exceptional." Since Rabinovitz did not receive an "exceptional" rating, he did not receive a one-time $ 500 bonus given to those employees given an "exceptional" or "outstanding" review. Russo testified that the relatively lower rating was based on Rabinovitz's work, his skills in real estate, and his weaknesses in computer skills. This was Russo's first time rating Rabinovitz. As such, Russo was unaware of Rabinovitz's earlier ratings and denied basing the ratings on Rabinovitz's age or religion. Rabinovitz asserts the drop in rating follows Russo's discriminatory attitude towards older and Jewish individuals.

 Libby made her RO selection on April 7, 1991. After consideration of the MPP rating, the interview scores, and his SF-171 forms, Libby selected Shepack. Libby stated that Shepack had a diversified and solid technical background and many years of supervisory experience. Libby chose not to select Rabinovitz because he lacked the skills required of a supervisor or manager. Libby testified that Rabinovitz's age and religion were not a consideration in his non-selection. Libby again notified Rabinovitz of her decision to select Shepack. Libby met with Rabinovitz personally. Libby told him that she would provide additional management training to enhance his chances for further advancement. Again, Rabinovitz refused.

 On April 19, 1991, Russo informed Rabinovitz, after a meeting in Libby's office, that within the office setting he was not to talk to anyone about anything except business; that he was not to leave the office for any reason without reporting to Russo; to limit his breaks to 20 minutes; and to no longer use the branch secretary. Shepack stated that these limitations were due to Rabinovitz's frequent abuse of breaks, during which he would roam the halls and his whereabouts were unknown. As to the use of the office secretary, Shepack stated that he and Russo told all branch employees not to use the secretary in an effort to give them an incentive to use the assigned computers. With regard to the 20 minute break limit, Rabinovitz admitted at a deposition that the limit was government policy and that the policy was neither discriminatory nor retaliatory.

 Rabinovitz filed a second formal discrimination complaint on May 13, 1991, alleging that he was denied the RO job due to his age or religion. Rabinovitz testified that at some point after he filed the complaint, Shepack and Russo assigned him to an out-of-town project on the same day that an EEOC examiner came to his office to begin investigating the charges. However, Shepack testified that he sent Rabinovitz to perform duties and functions that were in Rabinovitz's particular area of responsibility.

 Beginning in January 1992, the FAA employed a new "flex time" policy which allowed its employees to arrange a convenient eight-hour schedule. Rabinovitz first requested to work from 6:30 a.m. until 3:00 p.m. for health reasons. Shepack granted the request. But later, Rabinovitz requested to begin work even earlier, at 6:00 a.m. Shepack denied the change because, according to Shepack, he had a limited work force and the regional administrator required a technical employee to be at work at all times from 7:30 a.m. until 4:30 p.m. Accordingly, Shepack decided to bar any technical employee from starting before 6:30 a.m. Russo and Shepack did allow other non-technical employees to begin before 6:30 a.m.

 In February 1992, Russo rated Rabinovitz as "exceptional," a step above "fully successful." Rabinovitz contends this higher rating was a reaction to the discrimination charges. While on the job, Rabinovitz complained to Shepack publicly about unfair treatment. Shepack replied, "if you don't like it, resign." Several months later, on October 31, 1992, Rabinovitz voluntarily retired from the FAA. According to Rabinovitz, he retired because of "constant ...


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