Chandler v. Johnson, 74-1596

• Decision Date: 25 April 1975
• Docket Number: No. 74-1596,74-1596
• Citation: 515 F.2d 251
• Parties: 10 Fair Empl.Prac.Cas. 689, 9 Empl. Prac. Dec. P 10,123 Jewell D. CHANDLER, Appellant, v. Donald E. JOHNSON, in his official capacity as Administrator of VeteransAffairs, Veterans Administration, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 251

515 F.2d 251

10 Fair Empl.Prac.Cas. 689, 9 Empl. Prac.

Dec. P 10,123

Jewell D. CHANDLER, Appellant, v. Donald E. JOHNSON, in his official capacity as Administrator of VeteransAffairs, Veterans Administration, et al., Appellees.

No. 74-1596.

United States Court of Appeals Ninth Circuit.

April 25, 1975.

Stuart P. Herman (argued), Beverly Hills, Cal., for appellant.

Joel L. Selig, Lawyers's Comm. For Civil Rights under Law (argued), Washington, D. C., for amicus curiae.

Barry J. Trilling, and J. Mark Waxman, Asst. U. S. Attys., Los Angeles, Cal. (argued), for appellees.

OPINION

Before TRASK, CHOY and GOODWIN, Circuit Judges.

ALFRED T. GOODWIN, Circuit Judge:

Jewell Chandler, a black, female employee of the Veterans Administration, appeals from a summary judgment denying judicial relief under Section 717 of Title VII of the Civil Rights Act of 1964, as added by Section 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16.

Appellant alleges that the VA denied her a promotion because of her sex and race. She exhausted her administrative remedies within the VA and the Civil Service Commission before beginning this action. The district court found no substantial defects in the agency proceedings.

Appellant has been employed since 1966 in the Adjudication Division, Los Angeles Region. She received five promotions in six years. In 1972, she was one of seven examiners (GS-12) interviewed for the position of Supervisory Veterans Claims Examiner (GS-13). Appellant was one of three finalists, but a Filipino-American male received the promotion.

In a two-day hearing called pursuant to 5 C.F.R. § 713.217, a complaints examiner heard ten witnesses. Other witnesses requested by appellant were not called because she did not show that they would add anything material to the record. Appellant chose to represent herself. She failed to produce objective evidence of discrimination, but the complaints examiner, in a twenty-page recommended decision, concluded that appellant was better qualified for the promotion than the person selected. The examiner found that the selecting official had discriminated against appellant because of her sex. The examiner found no evidence of racial bias. The decision recommended that appellant be promoted to the GS-13 position retroactively to September 17, 1972.

Pursuant to Civil Service regulations, the recommended decision and the hearing record were sent to the head of the VA for final agency decision. In a letter dated March 21, 1973, Mr. Kenneth Meyer, acting assistant general counsel of the VA, rejected the complaints examiner's recommendation, stating that the finding of sex discrimination was not "substantiated by the evidence".

Appellant appealed to the Civil Service Commission Board of Appeals and Review. On July 18, 1973, the board affirmed the agency decision. This litigation followed.

The appellant raises four questions: (1) Whether the delegation of reviewing authority within the VA to the assistant general counsel constituted a fatal defect in the administrative review. (2) The legal sufficiency of the assistant general counsel's reasons for rejecting the claim. (3) The sufficiency of the administrative record. (4) The right to trial de novo in the district court.

I.

While there may have been some ambiguity in VA regulations at the time the acting assistant general counsel rejected appellant's claim, a matter we need not decide, we can find no substantive reason for holding that the delegation of reviewing authority "to the general counsel or his designee" denied the appellant the quality of agency review contemplated in the regulations implementing Title VII.

A CSC regulation, 5 C.F.R. § 713.221(a), provides that when an alleged violation of Title VII occurs in a federal agency, the head of the agency or his designee shall decide whether the agency will adopt, reject, or adopt with modifications the recommended decision of the complaints examiner. A VA regulation, 38 C.F.R. § 2.6(e)(6), delegated Title VII authority from the agency head to the general counsel or his designee. If there were, as appellant claims, inconsistent regulations in effect in 1973, she has not cited the C.F.R. references, and the government represents that the inconsistencies, if any, have been cured. In any event, the delegation question presents nothing of substance in this case.

Appellant relies on United States v. King, 478 F.2d 494 (9th Cir.), cert. denied, sub nom., Light v. United States, 414 U.S. 846, 94 S.Ct. 111, 38 L.Ed.2d 94 (1973), where we held that statutory guidelines in the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2516, prohibit the attorney general and his specially designated assistant attorneys general from redelegating the authority to authorize wiretaps. Here, unlike in King, we find no evidence of a legislative policy to limit reviewing authority to specific officials or to officials of a specific level in the bureaucracy. Indeed, it would be counterproductive and unnecessarily restrictive to subject government-employee Title VII cases to uncertainty and delay in exhausting administrative remedies because of a nonprejudicial ambiguity in the delegation of reviewing authority within the agency. The district court was correct in refusing to find a fatal defect in the agency's delegation procedure.

II.

Appellant next asserts that the decision letter by which she received notice of final agency action rejecting her claim was fatally defective because it did not "set forth the specific reasons in detail for rejection * * *." 5 C.F.R. § 713.221(b)(2).

Appellant also contends that she made at least a prima facie case before the complaints examiner, as demonstrated by the examiner's finding of discrimination. (When an employee establishes a prima facie case of discrimination, the employer must articulate some "legitimate, non-discriminatory reason" for its action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).)

Appellant points to the statement in the decision letter that "the record is absolutely void of any evidence or testimony in reference to any acts, words, or innuendos, discriminatory in nature, by the selecting official * * *," as evidence that Mr. Meyer rejected the complaints examiner's recommended decision for the wrong reason, i. e., because appellant had failed to prove a specific overt intent to discriminate. (Title VII proscribes "subtle as well as overt discrimination, McDonnell Douglas Corp. v. Green, 411 U.S. at 801, 93 S.Ct. 1817, and it forbids employment practices with discriminatory consequences as well as discriminatory designs. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).)

Appellant is correct in asserting that she was entitled to an affirmative statement of nondiscriminatory reasons for the selection of another applicant. She is also correct in her assertion that she was under no duty to prove a specific intent to discriminate against her. However, the Meyer letter, as well as other documents in the administrative file, contains statements of nondiscriminatory reasons for the VA decision, and the administrative record on the whole shows that appellant did not lose her case because of an erroneous belief by Mr. Meyer that she had a higher burden of proof than the law requires.

Notwithstanding any flaws in the Meyer letter, the administrative record showed that the man who was promoted had several years of seniority both in grade and in the division, and a numerical score two points higher than appellant's on a grading system that was not shown to have been discriminatory. The Civil Service Commission...