314 F.3d 1229 (10th Cir. 2003), 02-7016, Timmons v. White

Docket Nº:02-7016.
Citation:314 F.3d 1229
Party Name:Hunter TIMMONS, Jr., Plaintiff-Appellant, v. Thomas E. WHITE, Secretary of the Army, Defendant-Appellee.
Case Date:January 06, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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314 F.3d 1229 (10th Cir. 2003)

Hunter TIMMONS, Jr., Plaintiff-Appellant,


Thomas E. WHITE, Secretary of the Army, Defendant-Appellee.

No. 02-7016.

United States Court of Appeals, Tenth Circuit

January 6, 2003

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Steven M. Angel, Angel & Associates, Oklahoma City, OK, for Plaintiff-Appellant.

Francis P. King, Special Assistant U.S. Attorney (and Cheryl R. Triplett, Assistant U.S. Attorney, with him on the brief, and Sheldon J. Sperling, U.S. Attorney and Michael J. Meisel, Office of the Judge Advocate General, Army Litigation Division, on the brief), Muskogee, OK, for Defendant-Appellee.

Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge and MURPHY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-Appellant Hunter S. Timmons, a former employee at the McAlester Army Ammunition Plant in McAlester, Oklahoma ("McAAP"), appeals from the judgment of the district court denying his motion for partial summary judgment and granting summary judgment in favor of the Secretary of the Army ("Defendant"). Mr. Timmons argues that the district court erred because, as a federal employee who has secured a finding of employment discrimination by the Equal Employment Opportunity Commission ("EEOC"), he is entitled to seek de novo review of the remedy awarded without re-litigating the merits of his discrimination claim. For the reasons which follow, we reject Mr. Timmons' arguments and affirm the district court.


In September of 1993, management at McAAP informed Mr. Timmons that his position at the plant, along with those of two fellow employees, would not be renewed and that his temporary appointment would therefore not be extended. Several months after his termination, Mr. Timmons learned that McAAP officials had in fact extended the appointment of one of the employees whose appointment was to expire at the same time as his. In response to this new information, Mr. Timmons filed a formal complaint with the Department of the Army alleging discrimination on the basis of age and disability.

Following a hearing and investigation, the Department of the Army issued a report finding no discrimination. Mr. Timmons thereafter appealed to the EEOC, which after a series of administrative hearings and orders issued a decision finding

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that Mr. Timmons was discriminated against based on disability when his temporary appointment was not extended. Consequently, the EEOC ordered Defendant to, inter alia, correct its records to reflect that his appointment had been extended for one year--the same amount of time as the similarly situated employee whose appointment was extended--and to give Mr. Timmons back-pay and other benefits for that time period. The EEOC denied both parties' requests for reconsideration, stating that the prior order constituted its final decision.

Mr. Timmons subsequently filed a petition for enforcement with the EEOC claiming improper calculation of back-pay and that he was entitled to a promotion to a term position at McAAP. The EEOC granted the petition as to Mr. Timmons' back-pay claims, ordered Defendant to correct the errors and tender an additional payment, but denied his claim that he was entitled to a term position.

After Defendant complied with the EEOC's second order, Mr. Timmons filed yet another petition for enforcement, again claiming that Defendant incorrectly calculated the amount of back-pay to which he was entitled. The EEOC denied this second petition and specifically held that Defendant had fully complied with its final order. Mr. Timmons thereafter filed the instant civil action. His complaint alleged that the EEOC's decision violated the Rehabilitation Act by failing to afford him complete relief and sought a determination that he is entitled to "reinstatement and continuation of back pay beyond the period ordered by the EEOC...." Aplt.App. at 2-3.

Following discovery, Mr. Timmons filed a motion for partial summary judgment asserting that he was entitled to summary judgment on the issue of liability because the EEOC's finding of discrimination was binding on Defendant and that he could seek de novo review of the remedy awarded by the EEOC "without placing in issue the question of liability." Aplt.App. at 360. In Defendant's motion for summary judgment, Defendant argued that Mr. Timmons' action constituted an enforcement action and that, because the EEOC held that Defendant had fully complied with its final order, summary judgment was warranted because there was "nothing left to enforce." Aplt.App. at 434.

Characterizing Mr. Timmons' suit as an action seeking additional relief rather than an action for enforcement, the district court held that although a federal employer is indeed bound by a prior EEOC finding of discrimination in an action for enforcement, such an action is unavailable under 29 C.F.R. § 1614.503(g) where, as in the instant case, the EEOC has found the federal employer in compliance with its order. Second, the district court held that where a plaintiff seeks additional relief, "he or she remains an aggrieved party who must subject themself [sic] to de novo review under 42 U.S.C.2000e-16(c) and Title 29 C.F.R. 1614.408." Aplt.App. at 21. Additionally, the court held that de novo review under § 2000e-16(c) "requires a trial of all the issues in the particular case." Id. at 17-18 (emphasis added). Accordingly, the court denied Mr. Timmons' motion and granted summary judgment in favor of Defendant. This appeal followed.


Mr. Timmons argues that the district court erred because the relevant statutes, federal regulations, and case law from other circuits demonstrates that a federal employee who obtains a finding of discrimination by the EEOC may seek de novo review of the remedy awarded without re-litigating the underlying claim of discrimination. Defendant argues that Mr. Timmons' action should be characterized

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as an action for enforcement of a final EEOC order and that, because the EEOC specifically held that it had complied with the order, Mr. Timmons' action cannot be maintained. In the alternative, Defendant contends that even if Mr. Timmons' action is not an enforcement action, "the law does not support Plaintiff getting a limited review of remedy only." Aple. Br. at 11.

We review a grant of summary judgment de novo and apply the same legal standard used by the district court under Fed.R.Civ.P. 56(c). Sigmon v. Community Care HMO, Inc., 234 F.3d 1121, 1124 (10th Cir. 2000). Under Rule 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." If there is no genuine issue of material fact, then the reviewing court must determine if the district court correctly applied the law. See Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995).

1. Proper Characterization of Mr. Timmons' Action

As a threshold matter, we must determine whether Mr. Timmons' suit constituted an action for enforcement or a civil action under 42 U.S.C. § 2000e-16(c). When the EEOC finds that a federal agency is not complying with a final order, or where the agency has refused or failed to submit a report of compliance, a federal employee has three options. The employee may elect to: (1) bring a "civil action for enforcement;" (2) "seek judicial review of the agency's refusal to implement the ordered relief;" or (3) "commence de novo proceedings pursuant to the appropriate statutes." 29 C.F.R § 1614.503(g). Second, it is clear that even in the absence of an EEOC finding of non-compliance, a federal employee who is unhappy with a final decision of the EEOC may bring a civil action in federal district court as provided in 42 U.S.C.§ 2000e-5. 1 42 U.S.C. § 2000e-16(c).

Although Defendant maintains that Mr. Timmons' lawsuit was an enforcement action, we disagree. Obviously, if Mr. Timmons' action constituted an enforcement action, the lack of an EEOC determination of non-compliance, which is a prerequisite to such a suit, would have rendered the grant of summary judgment in favor of Defendant appropriate on that ground. While it may be true, as the district court noted, that Mr. Timmons "pled [his] case as an enforcement action," we agree with the district court that "[i]n the instant case, Plaintiff is not seeking the enforcement of a final EEOC order." Aplt.App. at 15 n. 4. Significantly, Mr. Timmons' complaint specifically requested more relief than the EEOC awarded, namely additional back pay and reinstatement at McAAP. Moreover, the very fact that the EEOC determined that Defendant had complied with its final order negates any contention that the underlying suit was an enforcement action. See Cocciardi v. Russo, 721 F.Supp. 735, 737 (E.D.Pa.1989). We therefore hold that Mr. Timmons' action constituted a civil action brought under § 2000e-16(c ).

2. Availability of Limited Review Under 42 U.S.C. § 2000e-16(c)

Having determined that Mr. Timmons' action constituted a § 2000e-16(c) civil action, we must next decide whether a plaintiff who files such an action is entitled to

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seek de novo review of the remedy awarded by the EEOC without re-litigating the merits of the discrimination claim. In essence, Mr. Timmons asks us to hold that where a plaintiff brings such an action, the agency defendant involved is bound by a prior EEOC finding of discrimination.

The question of whether a plaintiff may obtain a limited review under § 2000e-16(c) is a question of first impression in this circuit. Moreover, our review of cases from other circuits has revealed that the courts that have addressed the question have come to differing conclusions regarding a federal employee's right to bring a de novo civil action limited to remedy only....

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