520 F.2d 108 (D.C. Cir. 1975), 73-2072, Hackley v. Roudebush

Docket Nº:73-2072.
Citation:520 F.2d 108
Party Name:Ralph M. HACKLEY, Appellant, v. Richard L. ROUDEBUSH, Administrator of Veterans Affairs, et al.
Case Date:September 29, 1975
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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520 F.2d 108 (D.C. Cir. 1975)

Ralph M. HACKLEY, Appellant,

v.

Richard L. ROUDEBUSH, Administrator of Veterans Affairs, et al.

No. 73-2072.

United States Court of Appeals, District of Columbia Circuit

September 29, 1975

Argued Feb. 7, 1975.

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David J. Saylor, Washington, D. C., for appellant.

Edward D. Ross, Jr., Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Ellen Lee Park, Asst. U. S. Attys., were on the brief, for appellees. Harold H. Titus, Jr., U. S. Atty. at the time the record was filed, also entered an appearance for appellees.

Charles Stephen Ralston, New York City, with whom James M. Nabrit, III, New York City, and David Cashdan, Washington, D. C., were on the brief, for NAACP Legal Defense and Educational Fund, Inc. as amicus curiae.

Before WRIGHT and LEVENTHAL, Circuit Judges, and DAVIS, [*] Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

Plaintiff-appellant Ralph Hackley, a black employee of the Federal Government, brought suit in the District Court alleging racial discrimination in the employment practices of the Veterans Administration's Investigation and Security Service Division. 1 Having exhausted his administrative remedies without satisfaction, appellant contended that the Equal Employment Opportunity Act of 1972, Section 11, 42 U.S.C. § 2000e-16 (Supp. III 1973), which

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amended Title VII of the Civil Rights Act of 1964 to encompass federal employees and to accord them the right to file a "civil action" after final agency action, entitled him to a trial de novo on his discrimination claims in the District Court. 2 In response, appellees sought summary judgment on the basis of their assertion that, as a legal matter, the role of the District Judge in such civil actions was limited to review of the administrative record to ensure the existence of a rational basis for the agency's 3 decision and that, as a factual matter, the administrative record clearly indicated that there was a rational basis for the agency's finding that there was an absence of discrimination against appellant. 4 Judge Gesell granted appellees' summary judgment motion 5 since his analysis of the language and legislative history of the 1972 amendments to Title VII, and his perception of the policies implicated by the question of de novo proceedings, convinced him that Title VII did not accord an aggrieved federal employee the right to a trial de novo ; however, he held that the administrative record must be scrutinized under the more demanding preponderance of the evidence standard of review. 6 Although we believe there may be some merit to the concerns

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which motivated Judge Gesell's holding, we are of the opinion that Congress intended to bestow on federal employees the same rights in District Court including the right to a trial de novo which it had previously mandated for private sector employees, and that the Federal Rules of Civil Procedure are flexible enough to enable trial judges to prevent such de novo trials from unduly burdening the courts or substantially duplicating agency proceedings. 7 Accordingly, we reverse the grant of the motion for summary judgment and remand the case to the District Court for further proceedings consistent with this opinion. 8

I

On June 29, 1967 appellant Hackley transferred from a GS-7 position with the District of Columbia Department of Public Welfare to a GS-7 position as a General Investigator in the Investigation and Security Service Division (I&S) of the Veterans Administration (VA). Before appellant was hired at the insistence of Mr. Holland, I&S' then recently appointed black Director, I&S had never had a black investigator.

During Mr. Holland's tenure as Director of I&S, appellant progressed from GS-7 to GS-12, reaching the latter rating in November 1969. 9 Shortly thereafter, Mr. Holland was succeeded by Mr. Maiers, a white Director. In February 1971 appellant complained that Mr. Maiers and his assistant, Mr. Rettew, had denied him a promotion to the level of GS-13 solely because of racial discrimination. An informal investigation of the allegation was conducted by an Equal Employment Opportunity counselor, who interviewed five of appellant's past and present supervisors; the counselor recommended that appellant be promoted because, inter alia, there were no written job standards at I&S, thus leaving the question of promotions "to the personal likes and dislikes of the supervisors," 10 who ostensibly considered appellant lacking in experience and deficient in the areas of field investigation and report writing necessary for such a promotion. 11

When the EEO counselor informed appellant that VA management had rejected this recommendation, he lodged a formal complaint of racial discrimination with the VA on March 22, 1971, asserting that Messrs. Rettew, Maiers, and Turner (Assistant Administrator of the VA for Management and Evaluation) were responsible for the allegedly discriminatory acts. A formal investigation of this complaint was conducted during April 1971 by Mrs. Kinnebrew, a VA employee. In her final written report, she concluded that appellant's work assignments and a lack of communication with management had "placed him in a cycle of discriminatory circumstances." 12 She perceived a "vast difference" in the assignments given appellant (predominantly assistance to white investigators on cases concerning blacks, with accountability to numerous supervisors) and those given Mr. Sandleman, a white GS-12 investigator

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hired after appellant (predominantly assigned his own cases concerning whites, with accountability to a single supervisor). 13 Although she recommended that actions be taken to avoid such a cycle of discriminatory circumstances in the future, and that job standards be reduced to writing and the length of the training program spelled out, 14 these remedial actions were not taken by appellant's superiors and his dispute remained unresolved.

After being informed by Mr. Turner that no promotion would be forthcoming and that he had the option of requesting a decision by the VA's General Counsel either without or after a hearing on his complaint, appellant demanded a hearing. A Civil Service Commission (CSC) employee, Mr. Knazik, was designated the complaints examiner for the purpose of holding the formal hearing. Although no prehearing depositions were taken or other discovery allowed, appellant was represented by counsel at the hearing and was permitted to present and cross-examine available 15 witnesses. The hearing spanned seven days and was comprised of testimony from 19 persons, including appellant; upon its completion, Mr. Knazik filed a report to the VA stating various findings and concluding that there was no evidence to support a claim of racial discrimination in the failure to promote appellant. 16

In a letter to appellant, the Assistant General Counsel of the VA adopted Mr. Knazik's findings and recommended decision as the final VA position and notified appellant of his right to appeal the decision to the CSC's Board of Appeals and Review (BAR). Appellant filed such an appeal and the BAR requested the VA to supplement the hearing record by providing additional data concerning the races of certain I&S personnel as well as their promotion records. This information, supplied to the BAR in an unsworn memorandum by

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Mr. Turner, one of the officials accused by appellant of racial discrimination, was not subject to rebuttal by appellant, although it was discussed in the BAR's decision reviewing his complaint. On May 22, 1972 the BAR affirmed the VA decision and advised appellant that there were no further administrative remedies available. Appellant subsequently instituted the current suit against the Administrator of the VA, Messrs. Maiers, Rettew, and Turner, and the three members of the CSC, all in their official capacities. 17

II

Title VII of the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 253 et seq. (codified at 42 U.S.C. § 2000e et seq.), which generally prohibits 18 employment discrimination 19 based on an individual's race, color, religion, sex, or national origin, originally was inapplicable to federal employees. Although Congress did declare it to be "the policy of the United States to insure equal employment opportunities for (federal) employees without discrimination because of race, color, religion, sex, or national origin," 20 and although several Executive Orders reiterated that policy and charged the CSC with its enforcement, 21 specific implementing legislation was not enacted until the Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, 86 Stat. 103 et seq., extended the protections of Title VII so as to embrace federal employees. 22 Notwithstanding the constitutional right to be free from such discrimination, 23 federal employees attempting to enforce that right before 1972 had been faced with virtually insuperable obstacles to judicial rulings on the merits of their claims. 24 This anomalous situation was dramatically altered by the promulgation, as Section 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 (Supp. III

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1973), of Section 717 of the Civil Rights Act of 1964.

Subsection 717(a) of Title VII, 42 U.S.C. § 2000e-16(a), specifies that "(a) ll personnel actions affecting employees or applicants for employment * * * in executive agencies (of the United States) * * * shall be made free from any discrimination based on race, color, religion, sex, or national origin," while subsection 717(b) of Title VII, 42 U.S.C. § 2000e-16(b), authorizes the CSC to enforce subsection (a)...

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