MacDonald v. Cohen

United States Court of Appeals
For the First Circuit

No. 99-1991

WILLIAM F. MacDONALD, JR.,

Plaintiff, Appellant,

v.

WILLIAM S. COHEN, SECRETARY OF DEFENSE,
DEFENSE LOGISTICS AGENCY,
DEFENSE CONTRACT MANAGEMENT COMMAND BOSTON,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Torruella, Chief Judge,

Boudin and Lynch, Circuit Judges.

Scott A. Lathrop with whom Law Offices of Scott A. Lathrop,
P.C. was on brief for appellant.
Peter K. Levitt, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for
appellees.
December 1, 2000
 BOUDIN, Circuit Judge. This appeal stems from a

disability-discrimination suit brought by William MacDonald who

suffers from cerebral palsy. From 1981 to 1989, MacDonald

worked first as a file clerk and then as a procurement clerk at

the Boston office of the Defense Contract Management Command

("DCMC"), formerly a part of the Defense Logistics Agency and

now a separate entity within the Defense Department. A heart

condition forced MacDonald to retire on disability on July 8,

1989.

In early 1994, the Office of Personnel Management

notified MacDonald that it now found him sufficiently recovered

from the heart ailment to work again; his disability pension was

ended on July 26, 1994, after MacDonald's internal appeals were

exhausted. MacDonald promptly put his name on the list for re-

employment at DCMC, but the agency was then under a hiring

freeze. When the freeze was lifted, MacDonald applied for ten

job openings at DCMC, listed in four different "Job Opening

Announcements" ("JOA") between September 1996 and April 1997.

In each instance, MacDonald sought the position of a

procurement technician at a pay grade of GS-6, one level higher

than his last job in 1989 as a procurement clerk.1 Each time,

1MacDonald also applied for a July 1997 job listing (JOA
384-97) for contract administrator (trainee), which could begin
at GS-5 but had promotion potential to GS-11. DCMC ultimately

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MacDonald was classified as qualified for consideration and his

name was submitted to the selecting officials as a "handicapped

eligible" applicant. This designation, as we explain below,

gave MacDonald a potential advantage over "competitive"

candidates, but in each instance MacDonald was unsuccessful in

his application. A brief chronology of the main episodes is as

follows.

The first job posting (JOA 216-96) in September 1996

advertised four procurement technician jobs. Apart from

MacDonald, six competitive candidates, all current DCMC

employees working in GS-5 jobs, were referred for consideration.

The selecting officials initially chose current employees from

the list and filled the other two slots with "reassignments"--

apparently GS-6 employees working in other DCMC offices. One

reassignment candidate refused the job, as did two more offered

the still vacant position. The selecting officials then allowed

the opening to lapse, offering it neither to MacDonald nor any

of the other four remaining GS-5 applicants.

The next job posting in question (JOA 75-97) opened on

December 16, 1996 and offered two procurement technician

positions. Besides MacDonald, four other applicants--all

chose to fill the billet with a contract administrator
transferred from another team. MacDonald does not challenge
this action on this appeal.

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current DCMC GS-5 employees--were referred to the selecting

official. MacDonald was interviewed, but the jobs were given to

two of the other applicants. The selecting official assertedly

based her choice on personal knowledge of the successful

applicants' performance and job skills (as their current

supervisor) and their proven facility with new computer systems.

On March 20, 1997,2 the final job posting (JOA 226-97),

declared four more procurement technician jobs open, and, once

again, MacDonald was considered but not hired. The record does

not say how many candidates applied but, of the four who were

selected, two had relevant experience as senior (GS-11 and GS-

12) employees in the Defense Logistics Agency; another had been

commended for an "exemplary work ethic" and had exhibited broad

knowledge of contract administration and computer programs at

her interview; and the fourth hiree, who was handicapped, had

"an excellent work record and stellar references."

MacDonald was eventually rehired by DCMC in November

1997 for a temporary position as a secretary (GS-5). In

February 1998, he was reassigned to a recently-vacated permanent

2
Two of these jobs were originally announced on January 29,
1997 (JOA 137-97), but this earlier announcement expired without
action. The subsequent announcement in March (JOA 226-97) added
two additional openings and expanded the area of consideration
to include not just DCMC employees, but all "Federal employees
within the commuting area." Anyone who had applied in January
was automatically considered in March.

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position as a procurement technician at the GS-5 level. This

job was the same civil service rank as the procurement clerk

position MacDonald had held in 1989, and (by MacDonald's

admission) had roughly the same responsibilities. However, the

pay (and presumably the duties) were less than the GS-6

procurement technician post that MacDonald had sought in vain.

In May 1998, MacDonald brought suit in federal district

court under section 504 of the Rehabilitation Act, 29 U.S.C. §

794 (1994), which pertinently provides:

No otherwise qualified individual with a
disability . . . shall, solely by reason of
her or his disability, be excluded from the
participation in, be denied the benefits of,
or be subjected to discrimination . . .
under any program or activity conducted by
any Executive agency.

MacDonald's complaint charged that DCMC discriminated against

him because of his cerebral palsy when it refused, on ten

occasions, to give him a position as a procurement technician at

the GS-6 level.

After discovery, the government moved for summary

judgment, which the district court granted on July 20, 1999.

The district court ruled that there was no evidence from which

a factfinder could conclude that MacDonald had been denied any

of the positions "by reason of" his disability. The court noted

that in various instances, the successful candidate had superior

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knowledge (e.g., of pertinent computer systems) or had already

performed successfully at or above the higher grade to which

MacDonald aspired.

MacDonald now appeals and, the appeal being from a

grant of summary judgment, our review is de novo. LeBlanc v.

Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert.

denied, 511 U.S. 1018 (1994). The appeal is unconventional

insofar as MacDonald makes little attempt, with one exception,

to show that the district court erred in its appraisal of the

evidence. The exception is this: at the end of his brief

MacDonald says it is suspicious that he was selected for none of

the ten vacancies even though deemed qualified at the referral

stage and that in one instance, DCMC never filled the advertised

position at all.

Because it provides greater context, we begin with

MacDonald's evidence claim. Reserving for the moment possible

burden-shifting shortcuts, section 504 of the Rehabilitation Act

requires in a hiring case that the plaintiff show the following:

(1) that he applied for a position in a covered federally funded

program or activity; (2) that he is disabled; (3) that he was

qualified for the job; and (4) that he was not hired solely

because of his disability. Cook v. Dep't of Mental Health,

Retardation, and Hosps., 10 F.3d 17, 22 (1st Cir. 1993). The

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district court assumed that MacDonald could satisfy the first

three requirements but found no triable issue as to the fourth.

Whatever inference might otherwise be drawn from ten

unexplained rejections of a qualified candidate, here the

selection of alternate candidates was explained by the

government. MacDonald has not pointed to affidavit or other

evidence in the record to counter the government's showings as

to the colorably superior qualifications of any of the

candidates that were selected. Obviously, to say that MacDonald

was deemed qualified at the screening stage does not mean that

he was more qualified than other candidates.

This is not quite the end of the matter because for one

of the ten advertised positions for which MacDonald was deemed

qualified by the screener, no candidate was ever selected. The

district court's opinion made no separate mention of this no-

hire episode, nor is it addressed by the court's main rationale

that other candidates were better qualified for the nine

positions that were filled. Perhaps on some facts, an inference

of discrimination could be drawn from the simple refusal to hire

a "qualified" candidate where no other candidate was selected

and no explanation was given for failing to hire anyone.

But here the government did explain the outcome. It

said in discovery that six offers were made to persons who were

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more highly qualified than MacDonald; only three accepted; and

"[a]t that point the selecting officials decided that none of

the other applicants had sufficient experience and demonstrated

knowledge to successfully perform the job." Specifically, the

government said that MacDonald lacked sufficient experience with

the office's new procurement procedures and computer systems.

There is nothing suspicious about a selecting official

deciding that although MacDonald was qualified at the screening

stage, a close look at his qualifications at the selection stage

did not justify his promotion (or that of several other GS-5

applicants who had been referred). What is not explained is why

DCMC's rejection letter to MacDonald said that he had been

deemed "highly qualified." These words may have been

boilerplate or chosen to console (they were not repeated in the

next rejection letter) but, in any case, there is no indication

that the words comprised any formal ranking or serious

evaluation of skills.3

Although MacDonald has not cited the McDonnell Douglas

decision in his brief, McDonnell Douglas Corp. v. Green, 411

3
For jobs where ten or more candidates applied, the DCMC did
use a formal ranking system for competitive candidates based on
points for experience, schooling, etc. DLA Regulation No.
1404.4 Encl. 4 (Jan. 29, 1991). But MacDonald as a handicapped
eligible candidate did not need to be ranked, 5 C.F.R. §
213.3101 (2000), and it is unclear that he was ever formally
ranked under this system.

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U.S. 792 (1973), we have taken it for granted that some variant

of McDonnell Douglas applies in disability cases, Barth v. Gelb,

2 F.3d 1180, 1185 (D.C. Cir. 1993), cert. denied, 511 U.S. 1030

(1994), and we will assume arguendo that MacDonald himself made

the limited showings needed to trigger the burden shifting

requirement. Yet all such an initial showing by the plaintiff

requires is that the defendant supply an exculpatory explanation

for its challenged actions. Texas Dep't of Cmty. Affairs v.

Burdine, 450 U.S. 248 (1981). That is just what the government

has done, and MacDonald has proffered no evidence that DCMC's

explanation is pretextual.

This takes us at last to MacDonald's main claims on

appeal. Most are not stated in the complaint which (1) charged

discrimination in fact under section 504 and (2) relied

separately upon a DLA mandatory placement regulation yet to be

discussed. The additional arguments now pressed on appeal were

made in some form in MacDonald's opposition to the government's

motion for summary judgment; the district court's silence on

these issues may indicate that it regarded them as beyond the

bounds of the complaint.

We begin with the various regulations now invoked by

MacDonald. Under so-called Schedule A authority, 5 C.F.R. §§

213.3101-99 (2000), DCMC and other agencies can make

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preferential appointments to certain positions of "severely

physical handicapped persons who . . . have been certified by

counselors of State vocational rehabilitation agencies" as

meeting certain criteria. Id. § 213.3102(u). The parties agree

that MacDonald is such a person, having been certified by the

relevant Massachusetts agency. MacDonald says that he could

have been given one of the positions for which he applied

without interviews and without regard to his qualifications vis-

a-vis other applicants.

However, under the Schedule A regulations, handicapped

persons who qualify are not required to be given preference.

The governing provision merely states that "agencies may make

appointments under this section" and provides that "[p]ositions

filled under this authority are excepted from the competitive

service." 5 C.F.R. § 213.3101 (emphasis added). Schedule A

provides the agency a means to avoid competitive placement but

does not impose an obligation to use this authority in any

specific case. See Van Wersch v. Dep't of Health & Human Svcs.,

197 F.3d 1144, 1146 (Fed. Cir. 1999). DCMC later did use

Schedule A to secure MacDonald his present GS-5 appointment.

By contrast, under a different subpart of the civil

service regulations, a compulsory priority in rehiring is

accorded to certain employees, including those who retired with

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a disability but "whose disability annuity has been . . .

terminated." 5 C.F.R. § 330.703(b)(4).4 The parties agree that

MacDonald is a qualified recovered disability annuitant. But to

be eligible for priority under this regulation, MacDonald had to

apply for a vacancy "at or below" his original grade level, id.

§ 330.704(a)(3), and--given his eligibility category--to apply

within one year after receiving notification that his disability

annuity status was terminated, id. § 330.704(c)(3).

MacDonald fails on both counts. For all of the

procurement technician posts for which MacDonald applied, the

grade was GS-6, one level higher than his job in 1989 as a

procurement clerk. Although MacDonald seeks to equate the

responsibility of the two positions, the regulation refers

specifically to grade level, and a GS-6 is a higher level than

GS-5. In all events, MacDonald applied for each of the ten

positions more than a year after receiving notice that his

disability annuity was terminated in 1994 and thus fails the

"within one year" requirement.

MacDonald also relies on a Defense Logistics Agency

regulation apparently not codified in the C.F.R. In describing

4Subpart G, 5 C.F.R. § 330.701-.711 (2000), comprising the
"interagency career transition assistance plan for displaced
employees," provides protection for numerous categories of
employees who were previously terminated for a range of
different reasons, including downsizing.

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the agency's merit promotion program, the regulation states,

under the heading "mandatory placement actions," that an

individual "in any of the categories below" must be given

"appropriate placement entitlement" if the individual is

available and qualified when a vacancy occurs, DLA Reg. No.

1404.4, § VI, ¶ A(1) (Jan. 29, 1991). There follows a list of

categories (e.g., "employees returning from Military Service")

the last category being "qualified recovered disability

annuitants and former employees receiving Workers Compensation."

Id.

MacDonald takes this DLA regulation as entitling him

to a priority regardless of whether he meets the conditions set

forth in the C.F.R. subpart (subpart G) conferring a priority on

disability annuitants whose annuity has been terminated. 5

C.F.R. § 330.703(b)(4). On our reading, the DLA regulation,

insofar as it refers to qualified recovered disability

annuitants, is nothing other than a cross-reference to subpart

G and carries with it the same qualifications contained in the

C.F.R. Indeed, the DLA regulation has to be a set of cross-

references since it does not purport to describe in detail its

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categories or say what the "appropriate placement entitlement"

for each would be.5

Regulations aside, much of MacDonald's brief on appeal

is devoted to an attack on DCMC's use of "subjective" criteria

in hiring. The attack takes the form of citing decisions that,

in resolving various discrimination charges (e.g., race,

gender), observe that subjective judgments may cloak

discrimination.6 But the cases involve a range of situations and

commentary, and it is never clear just what rule MacDonald seeks

to distill from this case law or how he thinks it bears upon his

own circumstances.

It appears that in this case DCMC used both hard and

soft criteria, but MacDonald is not automatically entitled to an

inference or presumption of discrimination merely on that

account. In most of the cases cited, there was specific

evidence of discrimination, statistical or direct, and the

5MacDonald further argues that DCMC violated the same DLA
regulation by using panels in its selection process. However,
the regulation clearly allows for the use of panels as long as
the "selecting supervisor remains responsible for making his/her
own selections," as was the case for each of MacDonald's
applications. DLA Reg. No. 1404, § VI, ¶ J(2).
6
Roberts v. Gadsden Mem'l Hosp., 835 F.2d 793, 798-99 (11th
Cir. 1988); Miles v. M.N.C. Corp., 750 F.2d 867, 871-71 (11th
Cir. 1985); Burrus v. United Tel. Co., 683 F.2d 339, 342 (10th
Cir.), cert. denied, 459 U.S. 1071 (1982); Davis v. Califano,
613 F.2d 957, 965-66 (D.C. Cir. 1979).

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employer's subjective judgment was therefore discounted as a

defense. Miles, 750 F.2d at 870; Davis, 613 F.2d at 960-61.

But see Burrus, 683 F.2d at 342. Here, MacDonald has neither

pointed to such evidence nor sought to show that any one of

DCMC's selection decisions were colorably unsound.

MacDonald also argues that proof of discriminatory

intent can be inferred from DCMC's violation of its own

affirmative action plan, which was adopted pursuant to section

501 of the Rehabilitation Act. 29 U.S.C. § 791. MacDonald says

that DCMC violated its "Policy Statement on Equal Employment

Opportunity by relying on subjective rather than 'measurable

qualifications.'" The policy statement included in the record

does not appear to be the kind of formal "plan" to which the

statute refers, 29 U.S.C. § 791(b); it is a four-paragraph

memorandum from the DCMC Boston office commander couched in very

general terms. The pertinent paragraph reads:

Commitment to equal employment opportunity
starts at the top. I am unequivocally committed
to a workplace which evaluates every person as an
individual and gives credence only to measurable
qualifications and the employee's performance
record. Thus, when properly administered, equal
employment opportunity can produce an effective,
efficient and diverse workforce.

MacDonald apparently takes the reference to "measurable

qualifications" as precluding any judgment about his work

experience or skill level or about the excellent recent work

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performance of other candidates. "Measurable" does not mean

strictly objective; personnel ratings often assign numerical

ratings to soft skills or qualities; and the policy statement

itself makes clear that a "performance record" may be

considered. Whatever the legal status of this policy statement,

MacDonald has not demonstrated any violation of its very general

terms.

Finally, and in something of an about face, MacDonald

argues that it was wrong for DCMC to classify him as a

"handicapped-eligible" applicant when submitting his name for

consideration by selecting officials. However, it is MacDonald

who has been insisting throughout that he is entitled as of

right to a priority because of his disability and, as it turns

out, the selecting officials had the discretion to give him a

preference under Schedule A regulations. It is thus hard to

fault the agency for listing him separately in the first

instance.

Affirmed.

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