Ettinger v. Johnson

• Citation: 518 F.2d 648
• Decision Date: 18 June 1975
• Docket Number: No. 74-2171,74-2171
• Parties: 10 Fair Empl.Prac.Cas. 1243, 9 Empl. Prac. Dec. P 10,228 Linda ETTINGER, on her own behalf and on behalf of all others similarly situated, Appellant, v. Donald E. JOHNSON, Director, Veterans Administration, Washington, D. C. and S W. Melidosian, Director, Veterans Administration Center, Philadelphia, Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

Page 648

518 F.2d 648

10 Fair Empl.Prac.Cas. 1243,

9 Empl. Prac. Dec. P 10,228

Linda ETTINGER, on her own behalf and on behalf of all others similarly situated, Appellant, v. Donald E. JOHNSON, Director, Veterans Administration Washington, D. C. and S W. Melidosian, Director Veterans Administration Center Philadelphia, Pennsylvania.

No. 74-2171.

United States Court of Appeals Third Circuit.

Argued April 28, 1975.

Decided June 18, 1975.

Bolger & Picker, Employment Discrimination Referral Project, Philadelphia, Pa., Bennett G. Picker and Craig Currie, Philadelphia, Pa., for appellant.

Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Before VAN DUSEN, ADAMS and GARTH, Circuit Judges.

Appellate Section, Paul E. Holl, Asst. U. S. Atty., Philadelphia, Pa., for appellees.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal challenges an August 20, 1974, order of the district court, which denied plaintiff Ettinger's motions for class designation and for leave to amend her complaint, and entered judgment on the first amended complaint in favor of the defendants. ¹

Ettinger was hired as a psychology technician, grade GS-5, by the Veterans Administration Center in Philadelphia, Pennsylvania (the Center) on May 5, 1970. She was promoted in December 1970 to grade GS-6. ² Although she applied for promotions in March 1971 and April 1972, Ettinger was not promoted after December 1970. On November 17, 1972, Ettinger consulted an Equal Employment Opportunity Counselor at the Center, ³ alleging that she had encountered sex discrimination as a "continuing state of affairs" at the Center. The counselor construed Ettinger's allegations of sex discrimination as stating three specific complaints: (1) that she was discriminated against by being assigned to a GS-5 grade upon hiring; (2) that she was twice denied promotion because of her sex; and (3) that she was refused requested job training because of her sex. On December 6, 1972, after the counselor had investigated the facts relevant to each of these three complaints, he had a second interview with Ettinger. She advised him that she had just learned her work assignment was being changed and that she viewed this change as another instance of sex discrimination. The counselor, having investigated this latest charge, informed Ettinger at their final counseling session on December 8, 1972, that he found no basis "to her complaint that she had been discriminated against by reason of sex, either on a 'continuing' basis or at a single incident." Counselor's report of January 17, 1973, Document No. 4 in Civil No. 73-702, E.D.Pa. On December 18, 1972, Ettinger filed a formal complaint with the Center Director, Melidosian, alleging that she was subjected to "continuing" discrimination on the basis of sex. At an unspecified date after December 18, but within 15 days after the final counseling session, see 5 C.F.R. §§ 713.213(a) and 713.214(a)(1)(ii), the counselor apprised Ettinger that he questioned the timeliness of her resort to the counseling process and, therefore, of her formal complaint, "since the latest alleged act of discrimination mentioned at complainant's first session (on November 17) took place between 60-90 days previous," Document No. 4, supra, while the regulations require resort to a counselor within 30 days of an alleged discriminatory episode. 5 C.F.R. § 713.214(a)(1)(i). There is no indication that Ettinger knew of the 30-day limitation before this time.

Melidosian forwarded Ettinger's complaint to the Director of the Veterans Administration (VA), with the recommendation that it be rejected as untimely. This recommendation considered only the timeliness of the three complaints identified by the counselor as having been raised at the November 17 counseling session. No mention of the December 6 interview or of the allegedly "continuing" nature of the discrimination was made.

On February 22, 1973, Ettinger received a letter from the VA's Acting Assistant General Counsel, who declined to act on her complaint due solely to its untimeliness. The letter went on to state:

"If you are dissatisfied with this final decision, you have the following appeal rights:

You may appeal to the Chairman, Board of Appeals and Review, U. S. Civil Service Commission, Washington, D. C. 20415, within 15 calendar days of receipt of the decision.

You may file a civil action in an appropriate U. S. District Court within 30 days of receipt of the decision.

If you . . . appeal to the Commission, a civil action in a U. S. District Court may be filed within 30 days of receipt of the Commission's final decision.

A civil action may also be filed anytime after 180 days of the date of initial appeal to the Commission if there has not been a final decision rendered." ⁴

Pursuant to this notice of the right to sue, Ettinger bypassed an appeal to the Civil Service Commission and timely filed a complaint in the district court, ⁵ see Barnes v. Chatterton, 515 F.2d 916 (3d Cir. 1975), on behalf of herself and others similarly situated. The complaint, as amended, alleged that the defendants engaged "in employment practices which favor male applicants and employees and discriminate against females by preferential hiring, transfer, promotion (and) job assignment . . .." The district court, concluding that Ettinger was not entitled to trial de novo of her claims, granted summary judgment for the defendants on the ground that the administrative determination of untimeliness was supported "by not only substantial, but also uncontroverted facts" in the administrative record.

Ettinger filed this timely appeal in which she argues that she is entitled to a trial de novo of her discrimination claims in the district court and that, in any event, her resort to the administrative process was not untimely. ⁶

In Sperling v. United States, 515 F.2d 465 (3d Cir., filed 1975), this court decided that a federal employee who files an employment discrimination suit in the district court, pursuant to 42 U.S.C. § 2000e-16(c), ⁷ is entitled to a trial de novo of his claim. ^7a According to Sperling, then, we must remand this case to the district court for a trial de novo, unless we determine on this record that Ettinger, by failing to exhaust the administrative remedies available to her, has forfeited her right to resort to the district court.

"The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. See generally 3 K. Davis, Administrative Law Treatise § 20.01 et seq. (1958 ed., 1965 Supp.); L. Jaffe, Judicial Control of Administrative Action, 424-458 (1965). The doctrine provides 'that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.' Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (58 S.Ct. 459, 82 L.Ed. 638) (1938)."

McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (footnote omitted) (1969).

Although, as the McKart Court pointed out, the doctrine is "subject to numerous exceptions," id., Love v. Pullman, 404 U.S. 522, 523, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), makes clear that the exhaustion doctrine is not rendered supererogatory merely by the availability of a trial de novo in the district court. The plaintiff in Love was a private sector employee who, like federal employees under Sperling, was entitled to a trial de novo. See, e. g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Fekete v. U. S. Steel Corp., 424 F.2d 331 (3d Cir. 1970). Despite this access to the district court, the Court in Love stated that one "claiming to be aggrieved by a violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, (42 U.S.C. §§ 2000e to 2000e-15) may not maintain a suit for redress in federal court until he has first unsuccessfully pursued certain avenues of potential administrative relief." (Footnote omitted.)

The requirement that federal employees must, generally, exhaust administrative remedies is also implicit in Sperling's conclusion that "it was Congress' intent to provide an aggrieved federal employee with as full a panoply of procedural remedies in the district court as those afforded a private sector litigant." At 481. Since dispensation from the exhaustion requirement would give federal employees greater access to the district courts than private sector litigants, the principle of equality of remedy expressed in Sperling mandates that federal employees also be required to exhaust their administrative remedies before suing in the district court. See also Penn v. Schlesinger, 497 F.2d 970 (5th Cir. en banc 1974), app. pending, 43 U.S.L.W. 3310 (Nov. 26, 1974); Robinson v. Klassen, 9 E.P.D. P 9954 (E.D.Ark. Oct. 3, 1974).

With this background, we turn to the question whether Ettinger has exhausted her administrative remedies.

Ettinger was under no duty to appeal the decision of the VA's General Counsel to the Civil Service Commission. Sperling, supra at 472-473, 475-476. She therefore runs afoul of the exhaustion doctrine only if she failed either to bring her complaints to the attention of the counselor within the time limits prescribed by 5 C.F.R. § 713.214(a)(1)(i), ⁸ or to raise in the administrative process the issues set forth in her amended complaint. ⁹ Because the record before us, though not barren, does not contain sufficient facts relevant to deciding either aspect of this exhaustion issue, we will remand the case to the district court for a hearing de novo on the question of exhaustion. At the hearing on remand, the district court may consider in the context of a more fully developed factual record Ettinger's argument that she complied with the relevant time limitations in seeking agency resolution of her claims both because she alleged...