Pacheco v. Mineta

• Decision Date: 05 May 2006
• Docket Number: No. 04-51160.,No. 05-50129.,04-51160.,05-50129.
• Citation: 448 F.3d 783
• Parties: Carlos PACHECO, Plaintiff-Appellant, v. Norman Y. MINETA, etc., et al., Defendants, Norman Y. Mineta, Secretary, Department of Transporation, Federal Aviation Administration, Defendant-Appellee. Carlos Pacheco, Plaintiff-Appellee, v. Norman Y. Mineta, etc., et al., Defendants, Norman Y. Mineta, Secretary, Department of Transportation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

448 F.3d 783

Carlos PACHECO, Plaintiff-Appellant, v. Norman Y. MINETA, etc., et al., Defendants, Norman Y. Mineta, Secretary, Department of Transporation, Federal Aviation Administration, Defendant-Appellee.

Carlos Pacheco, Plaintiff-Appellee, v. Norman Y. Mineta, etc., et al., Defendants, Norman Y. Mineta, Secretary, Department of Transportation, Defendant-Appellant.

No. 04-51160.

No. 05-50129.

United States Court of Appeals, Fifth Circuit.

May 5, 2006.

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Regina Bacon Criswell (argued), Law Office of Regina B. Criswell, San Antonio, TX, for Pacheco.

Robert Keith Shaw-Meadow (argued), San Antonio, TX, for Mineta.

Appeals from the United States District Court for the Western District of Texas.

Before GARWOOD, PRADO and OWEN, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant Carlos Pacheco filed this suit against Norman Mineta, the Secretary of the United States Department of Transportation, pursuant to Title VII of the Civil Rights Act of 1964, section 717(c), 42 U.S.C. § 2000e-16(c). Pacheco alleged both disparate-treatment and disparate-impact discrimination. The district court entered summary judgement against Pacheco on his disparate-treatment claim, dismissing that claim with prejudice. The court dismissed Pacheco's disparate-impact claim for lack of subject-matter jurisdiction, pursuant to Rule 12(b)(1), citing his failure to exhaust his administrative remedies. Pacheco appeals only the second ruling, challenging the district court's dismissal for failure to exhaust administrative remedies. The government cross appeals the district court's failure to award it costs pursuant to Rule 54(d)(1). We affirm the district court's 12(b)(1) dismissal and we vacate and remand the district court's ruling with respect to costs.

FACTS AND PROCEEDINGS BELOW

Carlos Pacheco is an Air Traffic Controller Specialist with the Federal Aviation Administration ("FAA") in Corpus Christi, Texas. In December 1999, the Corpus Christi Air Tower announced a supervisor-level vacancy. Pacheco applied, but was ultimately passed over for promotion by a less-experienced applicant.

Air Traffic employees who have bid on a vacancy are subject to a two step selection process. In the first step, a human resources personnel specialist from the Federal Aviation Administration (FAA) Human Resource Management Division (HRMD) determines which of the candidates is qualified for the position, and submits the names of the qualified candidates to the selecting official, which in this case was the Corpus Christi Facility manager, Warren Meehan. In this case, HRMD forwarded seven names, including Pacheco's, to Meehan. In the second step, the selecting official chooses among the candidates referred to him or her by HRMD.

Warren Meehan had recently implemented a promotion system based, not on years of experience, but on twenty-three specified employee attributes, such as initiative, loyalty and integrity. The idea for this system came to him while at a 1999 manager's conference, at which the FAA Regional Manager had described the twenty-three employee attributes that he deemed important in future FAA leaders. Upon his return from the conference, Meehan decided that all future promotions at Corpus Christi would consider these factors.

Meehan's new system was used for the first time in February 2000, for the Operations Supervisor December 1999 vacancy at the Corpus Christi air tower, the promotion that is the subject of Pacheco's suit.¹ The supervisors of all seven employee candidates whose names had been forwarded by HRMD were interviewed and asked to rate their supervisee, on a scale of one to ten, in each of these twenty-three attributes. The supervisor interviews were conducted by a three-member panel, which included a Hispanic FAA employee from outside the facility. After the interview results were compiled, the panel reported them to Warren Meehan, who made the final employment decision. Pacheco, who was ranked sixth out the seven employees, was notified on February 28, 2000 that he did not get the promotion.

Pacheco timely contacted an equal opportunity counselor, alleging that he was passed over for promotion on the basis of his race.² Unsatisfied with the counselor's advice, Pacheco timely filed a formal administrative complaint on April 29, 2000 with the Equal Opportunity Office (EEO) of his employer, the Department of Transportation (DOT).³ On June 2, 2000, the DOT's Office of Civil Rights notified Pacheco by mail that it was accepting the following claim for investigation: "Whether the FAA treated you differently, based on your national origin (Hispanic), when you were not selected for a supervisor's job on February 28, 2000." The letter notified Pacheco that if he objected to the way his claim was stated, he should contact the Office within five days. Pacheco did not respond.

Unsatisfied with the EEO's resolution of his complaint, Pacheco filed this suit in the court below on November 14, 2002, against Norman Mineta, Secretary of the DOT, pursuant to Title VII of the Civil Rights Act of 1964, section 717(c).⁴ Pacheco's suit alleges both disparate-treatment discrimination and disparate-impact discrimination.⁵ The district court entered summary judgment against Pacheco on his disparate-treatment claim, and dismissed Pacheco's disparate-impact claim for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). The court held that Pacheco had failed to exhaust his administrative remedy before the EEO with respect to his disparate-impact claim. Pacheco does not appeal the summary judgment dismissal of his disparate-treatment claim. His only issue before this court is whether he exhausted his administrative remedies with respect to his disparate-impact claim.

Despite the DOT's summary judgment victory, the district court, without explanation, ordered that each party bear its own costs pursuant to Rule 54(d)(1). FED. R.CIV.P. 15(d)(1). The DOT filed a motion for a new trial and to amend judgment on the ground that the court erred in denying an award of costs to the prevailing party without any explanation. The district court then ruled that the losing party "brought this action in good faith" and accordingly denied the DOT's motion. The DOT has cross-appealed on the issue of costs.

DISCUSSION

I. Exhaustion of the Disparate-Impact Claim

Pacheco appeals the district court's Rule 12(b)(1) dismissal of his disparate-impact claim, arguing that he did, in fact, exhaust his administrative remedies before the EEO. Because we find that the scope of Pacheco's administrative charge is too narrow to have exhausted a claim for disparate-impact discrimination, we affirm.

A. Disparate Impact versus Disparate Treatment

Title VII creates a federal cause of action for two largely separate theories of discrimination, disparate treatment and disparate impact. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). Disparate-treatment discrimination addresses employment actions that treat an employee worse than others based on the employee's race, color, religion, sex, or national origin. In such disparate-treatment cases, proof and finding of discriminatory motive is required. Id.

Disparate-impact discrimination, on the other hand, addresses employment practices or policies that are facially neutral in their treatment of these protected groups, but, in fact, have a disproportionately adverse effect on such a protected group. Hebert v. Monsanto, 682 F.2d 1111, 1116 (5th Cir.1982). In disparate-impact cases, proof or finding of discriminatory motive is not required. Id. The defendant, however, can rebut a prima facie showing of disparate impact by proving that the challenged policy is a business necessity. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 853-54, 28 L.Ed.2d 158, (1973).

B. The Exhaustion Requirement

Section 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(c), permits most federal employees to seek relief from proscribed discriminatory employment practices in Federal District Court. As a precondition to seeking this judicial relief, however, complaining employees must exhaust their administrative remedies by filing a charge of discrimination with the EEO division of their agency.⁶ Brown v. General Servs. Admin., 425 U.S. 820, 96 S.Ct. 1961, 1967-68, 48 L.Ed.2d 402 (1976); Martinez v. Dep't. of U.S. Army, 317 F.3d 511 (5th Cir.2003); 29 C.F.R. § 1614.105-107 (2005). We review de novo a district court's determination of whether the exhaustion requirement is satisfied.⁷ Martinez, 317 F.3d at 512; Randel v. Dep't. of U.S. Navy, 157 F.3d 392, 395 (5th Cir. 1998).

The scope of the exhaustion requirement has been defined in light of two competing Title VII policies that it furthers. On the one hand, because "the provisions of Title VII were not designed for the sophisticated," and because most complaints are initiated pro se, the scope of an EEOC complaint should be construed liberally. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463 (5th Cir. 1970); Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 451 (5th Cir.1983).⁸ On the other hand, a primary purpose of Title VII is to trigger the investigatory and conciliatory procedures of the EEOC, in attempt to achieve non-judicial resolution of employment discrimination claims. Id. at 466. Indeed, "[a] less exacting rule would also circumvent the statutory scheme, since Title VII clearly contemplates that no issue will be the subject of a civil action until the EEOC has first had the opportunity to attempt to obtain voluntary compliance." Sanchez, 431 F.2d at 467. See also Ong v. Cleland, 642 F.2d 316, 319 (9th Cir.1981) ("[a]llowing a federal court complaint to proceed despite its loose `fit' with the administrative charge and investigation ... is precluded if it would circumvent ... agency efforts to secure voluntary compliance before a civil action is instituted."). With that...