432 F.3d 1321 (11th Cir. 2005), 05-10957, Ellis v. England

Docket Nº:05-10957
Citation:432 F.3d 1321
Party Name:David W. ELLIS, Jr., Plaintiff-Appellant, v. Gordon R. ENGLAND, Defendant-Appellee.
Case Date:December 16, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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432 F.3d 1321 (11th Cir. 2005)

David W. ELLIS, Jr., Plaintiff-Appellant,


Gordon R. ENGLAND, Defendant-Appellee.

No. 05-10957

United States Court of Appeals, Eleventh Circuit.

Dec. 16, 2005.

Appeal from the United States District Court for the Northern District of Florida, D. C. Docket No. 02-00131-CV-3-LAC

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James E. Goodman, Johnson & Ward, Atlanta, GA, for Ellis.

E. Bryan Wilson, Tallahassee, FL, Pamela A. Moine, Pensacola, FL, for England.

Before TJOFLAT, DUBINA and HULL, Circuit Judges.


David W. Ellis, Jr. appeals the district court's decision granting summary judgment to the Secretary of the Navy ("Navy"), his employer, whom he alleged discriminated against him on the basis of his physical disability, paralysis in one leg, in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794(a). In particular, he alleged that the Navy unlawfully revealed his disability to prospective employers in the Priority Placement Program (PPP)1, which had an adverse impact on him. He further alleged that the Equal Employment Opportunity Commission ("EEOC") found such discrimination and ordered the Navy to consider his compensatory damages claims, but because the Navy refused to award him compensatory damages, he brought this action, seeking a jury trial pursuant to 42 U.S.C. § 2000e-16(c).

On appeal, Ellis contends that, in light of the EEOC order finding discrimination by the Navy, the district court erred in conducting a de novo review on the issue of liability. He submits that the only issue before the district court was one of damages. Ellis further contends that, assuming the court properly conducted a de novo review on the question of liability, it erred in granting the Navy summary judgment because he presented evidence establishing a prima facie case of discrimination.


We review a district court's legal conclusions de novo . Cotton v. Mass, Mut. Life Ins. Co., 402 F.3d 1267, 1277 (11th Cir. 2005). In bringing suit under the Rehabilitation Act, a federal employee must first raise his disability discrimination

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claim administratively through an internal complaints process within the employing agency. See 29 C.F.R. § 1614.106; see also Moore v. Devine, 780 F.2d 1559, 1562 (11th Cir. 1986). If dissatisfied with the agency's resolution, the employee may bring a claim to the EEOC, which will issue its own recommendation. See 29 C.F.R. § 1614.109; see also Moore, 780 F.2d at 1562. The agency then reviews the EEOC recommendation and issues another decision. See 29 C.F.R. § 1614.110. If this decision is not appealed to the EEOC, it concludes the administrative process. See id.

On conclusion of the administrative process, a federal employee who prevails may sue in a federal district court to enforce an administrative decision with which an agency has failed to comply. See Moore, 780 F.2d at 1563; see also 29 C.F.R. § 1614.503(g). Alternatively, a federal employee unhappy with the administrative decision may bring a claim in the federal district court and obtain the same de novo review that a private sector employee receives in a Title VII action pursuant to 42 U.S.C. § 2000e-16(c). See Chandler v. Roudebush, 425 U.S. 840, 863, 96 S.Ct. 1949, 1960-61, 48 L.Ed. 2d 416 (1976).

In Moore, we addressed the former situation and held that, where an employee seeks enforcement of a favorable EEOC ruling, we do not review the merits of the employee's claims de novo unless the relief the EEOC ordered is beyond its authority. See Moore, 780 F.2d at 1563-64. In contrast, in DeReyna, an unpublished opinion involving the same EEOC order at issue in this case, we held that de novo review by the district court was appropriate because the plaintiffs in that case did not seek enforcement of the order, but rather "sought relief greater than that afforded in the EEOC's order . . ." DeReyna v. England, No. 03-15069, slip op. at 4 (11th Cir. Apr. 30, 2004).2 In particular, we noted that the EEOC only ordered the defendant to consider plaintiffs' compensatory damages claims, and did not order the defendant to award plaintiffs compensatory damages. Id. at 2-3. Thus, we rejected plaintiffs' suggestion that "the only work left in this case is to quantify damages." Id. at 2. Nonetheless, we have not addressed or affirmed DeReyna 's holding in a published opinion, although we have held, in an unrelated context, that a party cannot seek to enforce an EEOC decision unless it is final and has reached the merits of the case. See Hines v. Widnall, 334 F.3d 1253, 1259 (11th Cir. 2003) (holding that district court was not bound to enforce EEOC class certification because EEOC had not reached a final determination on the merits).

In contrast, other circuits have addressed this issue in published opinions. They appear to split on the issue. In cases decided over ten years ago, both the Fourth and Ninth Circuits allowed limited review in de novo actions under 42 U.S.C. § 2000e-16(c). See Morris v. Rice, 985 F.2d 143, 145 (4th Cir. 1993); Pecker v. Heckler, 801 F.2d 709, 711 n.3 (4th Cir. 1986); Girard v. Rubin, 62 F.3d 1244, 1247 (9th Cir. 1995). Those cases allowed plaintiffs to seek de novo review of a favorable EEOC decision in the district court only on the issue of damages, and not on liability. See Rice, 985 F.2d at 145; Pecker, 801 F.2d at 711 n.3; Girard, 62 F.3d at 1247.

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On the other hand, more recent cases decided by the Third, Tenth, and D.C. Circuits have held that a district court must consider a federal employee's claims of discrimination de novo, and is not bound by the results of the administrative process. Morris v. Rumsfield, 420 F.3d 287, 294 (3rd Cir. 2005); see also Scott v. Johanns, 409 F.3d 466, 472 (D.C.Cir.2005) (holding that federal employee in Title VII action could not seek de novo judicial review only on the issue of remedy, and not liability); Timmons v. White, 314 F.3d 1229, 1234 (10th Cir. 2003) (same).

For instance, in Morris, the Third Circuit discredited the Fourth Circuit's decisions in Pecker and Morris because those decisions relied on our decision in Moore, which involved a suit to enforce an EEOC decision, not a suit seeking de novo review of the EEOC's decision. See Morris, 420 F.3d at 293 n.11; see also Scott, 409 F.3d at 470-71 (holding that the court in Pecker and Rice failed to consider Title VII's plain language and relied on inapposite cases involving enforcement actions); Timmons, 314 F.3d at 1236 (same). Moreover, the Third Circuit stated that "Girard offers no analysis, and appears to be in some tension with other Ninth Circuit precedent." Morris, 420 F.3d at 293 n.11; see also Scott, 409 F.3d at 471 (holding that Girard suffers from the same defects as Pecker and Rice).

While some circuits, particularly the Fourth and the Ninth, have read our decision in Moore to allow fragmentary de novo review of...

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