No. 96-8405 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 VICTOR VASQUEZ, PETITIONER v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT; JAMES B. KING, DIRECTOR ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General MARLEIGH D. DOVER JOAN C. GOODRICH Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the court of appeals correctly upheld the grant of summary judgment in favor of respondents when petitioner offered no evidence in support of his claims of discriminatory refusal to hire other than his own unsubstantiated allegations. (I) ------------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8405 VICTOR VASQUEZ, PETITIONER v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT; JAMES B. KING, DIRECTOR ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals was entered on January 13, 1997. A petition for rehearing was denied January 28, 1997. The petition for a writ of certiorari was filed on March 17, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT 1. In this employment discrimination case, petitioner asserts that various government officials conspired to deprive him of employment because of his race and ethnicity. In 1989 and in ---------------------------------------- Page Break ---------------------------------------- 2 1990, petitioner took an examination for the position of air traffic controller with the Federal Aviation Administration. Gov't C.A. Br. 7. These tests were conducted by personnel from the Office of Personnel Management (OPM), the office that administers certain employment tests for agencies of the federal government. Petitioner was rated as exceeding the maximum age on the first examination, 1. and on the second he did not pass the written test. Petitioner also claims that he took the air traffic controller examination on two occasions in 1987. Pet. 2. He maintains (id. at 2, 6) that on one of those occasions, on March 13, 1997, he observed a "convicted felon" now disguised as James B. King, Director of OPM, steal petitioner's completed examination. Petitioner believes that the test examiners and Director King are involved in a continuing conspiracy not only to keep him from being hired as an air traffic controller, but also to invade his privacy by sending low-flying aircraft over his house to spy on him. Id. at 7-9. Beginning in February 1986, petitioner took examinations for various clerical and administrative support positions. Gov't C.A. Br. 5. Petitioner passed these tests and, from time to time, was placed on a hiring register of persons eligible for federal employment in clerical positions. On at least one occasion, petitioner's eligibility lapsed when he failed to pursue any positions. Id. at 7. ___________________(footnotes) 1 Different age requirements apply depending on the specific position. ------------------------------------------- Page Break ---------------------------------------- 3 2. On August 6, 1992, petitioner filed an administrative complaint of employment discrimination against OPM, alleging that he sought employment but was being subjected to continuous harassment and invasion of his privacy by airplanes flying over his house. Gov't C.A. Br. 8. He drew pictures of the planes and maintained that the pilots were from an Air Force base. Ibid. On October 28, 1992, petitioner settled his complaint by entering into a Memorandum of Understanding/Agreement (Agreement). Gov't C.A. Br. 8. The Agreement allowed petitioner to use an earlier, higher test score (October 1990) rather than his current score (March 1992) in order to be placed higher on the list of persons eligible for clerical positions. Ibid. Petitioner filed a second administrative complaint against OPM on the date he signed the Agreement. Gov't C.A. Br. 8. He alleged that he did not timely receive the scores from the tests he took for federal employment. Ibid. He filed a third administrative complaint on January 9, 1993, contending that OPM failed to send his test results not only for the clerical and administrative tests he had taken, but also for two air traffic controller examinations he alleged he took in 1987. Id. at 9. 3. On January 18, 1994, petitioner, proceeding in forma pauperis, initiated this pro se lawsuit seeking monetary and injunctive relief under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. Gov't C.A. br. 9. He alleged, inter alia, that the OPM test examiners and Director King had conspired to deprive him of employment by stealing his test for the air traffic controller examination and to invade his privacy by ---------------------------------------- Page Break ---------------------------------------- 4 stalking him with airplanes equipped with special X-ray devices. Petitioner believes that respondents were conspiring against him because he is black and Hispanic. He also alleged that he was previously wrongfully discharged on the basis of his race and sex from a clerical position 2. at an Air Force base. On March 15, 1996, the district court granted respondents' motion for summary judgment, holding that the allegation of the theft of petitioner's test was based only upon "an unsupported self-serving allegation" that is not "credible." Gov't C.A. Br. 4- 5. The court found that the claim that low-flying aircraft were spying on petitioner was on its face "frivolous" and without merit. Id. at 4. The court also dismissed the discriminatory discharge claim against OPM and Director King because they were not petitioner's employer and had no part in the Air Force's decision to terminate petitioner's employment. Ibid. 4. While this case was pending in the district court, petitioner initiated two interlocutory appeals to the United States Court of Appeals for the Tenth Circuit. One appeal, filed June 15, 1995, challenged the magistrate judge's June 8, 1995 order which granted two motions filed by respondents to quash discovery requests made by petitioner. Gov't C.A. Br. at v. Petitioner then moved to withdraw the notice of appeal. The Tenth Circuit granted the motion, dismissing the appeal on July 10, 1995. Ibid. ___________________(footnotes) 2 Sometime prior to 1987, petitioner worked as a civilian clerical employee at the Air Force Finance and Accounting Center, Lowry Air Force Base, Denver, Colorado. In various applications for federal employment, petitioner admits that he was discharged from the center for committing sexual harassment. Gov't C.A. Br. 6 n.2. ---------------------------------------- Page Break ---------------------------------------- 5 On August 28, 1995, petitioner filed a second notice of appeal. Gov't C.A. Br. at v. He challenged the August 7, 1995 order of the magistrate judge denying petitioner's motion for reconsideration of an order denying extension of the discovery cutoff date. On November 22, 1995, the Tenth Circuit held that it lacked jurisdiction over the appeal because the August 7, 1995 order was interlocutory and not appealable under 28 U.S.C. 1291 or under any exception to the final judgment rule. Ibid. 5. On January 13, 1997, the court of appeals affirmed the grant of summary judgment entered by the district court in favor of respondents. Pet. App. 2a. ARGUMENT 1. This case presents no issue that warrants review by this Court. Although petitioner urges (Pet. 5) that the grant of summary judgment was improper because there are disputed issues of material fact regarding whether Director King is a convicted felon who participated in stealing petitioner's test papers, 3. the district court correctly granted summary judgment given the complete absence of any reliable evidence to support petitioner's claims. Under the standard articulated by this Court, a properly made summary judgment motion will be granted "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. ___________________(footnotes) 3 Petitioner also identifies (Pet. 6-10) other "disputed issues of material fact" in his petition for certiorari. However, these issues are not material, not credible, and not supported by any evidence. ---------------------------------------- Page Break ---------------------------------------- 6 242, 249 (1986). Here, petitioner's primary claim that his examination was stolen is based solely upon his allegation. That unsubstantiated claim does not create any disputed issue of material fact. Petitioner's other claims were also properly dismissed. The allegations that Director King and the test examiners were stalking him and spying on him are frivolous and similarly unsupported by any evidence. 2. Petitioner's second reason for seeking the Court's review also does not warrant certiorari. He appears to be arguing (Pet. 10-12) that the magistrate judge assigned to handle nondispositive motions in the district court improperly decided two discovery motions that petitioner had filed. Petitioner maintains that only the district court judge should have made the final decision on those motions. Id. at 10-11. The orders denying petitioner additional discovery, however, were not final orders which disposed of the case and the magistrate judge therefore had proper authority to decide them. Moreover, although the two discovery orders, June 8, 1995, and August 7, 1995, were the subject of two different interlocutory appeals taken by petitioner to the court of appeals, that court never considered the merits of either appeal. Petitioner withdrew one appeal and the court dismissed the other for lack of jurisdiction. When petitioner appealed this case after final judgment, he did not raise the issue of the discovery orders. Accordingly, petitioner may not bring that issue to this Court. Youakim v. Miller, 425 U.S. 231, 234 (1976). ------------------------------------------ Page Break ---------------------------------------- 7 3. Petitioner's claims against OPM and Director King are also barred because petitioner failed to timely exhaust his administrative remedies. 4. See Brown v. General Services Administration, 425 U.S. 820 (1976). Regulations require that an aggrieved party must begin the administrative process discrimination claim within 30 or 45 days of the alleged discriminatory event. See 29 C.F.R. 1613.214 (1986) (aggrieved party in 1987 must file informal complaint within 30 days of the alleged discriminatory event); 29 C.F.R. 1614.105 (a) (1) (1993) (after Oct. 1, 1992, aggrieved party must file informal complaint within 45 days of alleged discriminatory event). Petitioner's pertinent was filed on January 9, 1993, nearly six years after the allegedly discriminatory events. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General MARLEIGH D. DOVER JOAN C. GOODRICH Attorneys MAY 1997 ___________________(footnotes) 4 Additionally, OPM and Director King are not proper defendants in this action. Under Title VII only the head of the employing agency may be sued for employment discrimination. See 42 U.S.C. 2000e-16 (c). In this case petitioner never applied for employment at OPM.