Ososky v. Wick, 82-1043

• Citation: 704 F.2d 1264
• Decision Date: 08 April 1983
• Docket Number: No. 82-1043,82-1043
• Parties: 31 Fair Empl.Prac.Cas. 777, 26 Wage & Hour Cas. (BN 93, 31 Empl. Prac. Dec. P 33,498, 227 U.S.App.D.C. 135, 97 Lab.Cas. P 34,366 Margaret OSOSKY, Appellant v. Charles Z. WICK, Director of U.S. International Communication Agency.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1264

704 F.2d 1264

31 Fair Empl.Prac.Cas. 777,

26 Wage & Hour Cas. (BN 93,

31 Empl. Prac. Dec. P 33,498, 227 U.S.App.D.C. 135,

97 Lab.Cas. P 34,366

Margaret OSOSKY, Appellant v. Charles Z. WICK, Director of U.S. International Communication Agency.

No. 82-1043.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 18, 1982.

Decided April 8, 1983.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-02875).

Mark T. Wilson, Washington, D.C., of the Bar of the Court of Appeals for the District of Columbia, pro hac vice by special leave of the Court, with whom Ronda L. Billig, Washington, D.C., was on brief, for appellant.

Diane M. Sullivan, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief for appellee. Kenneth M. Raisler, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Edith Barnett, Washington, D.C., was on brief for Women's Legal Defense Fund, amicus curiae urging reversal.

Before LUMBARD, ^* Senior Circuit Judge, United States Court of Appeals for the Second Circuit, and EDWARDS and BORK, Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge LUMBARD.

LUMBARD, Circuit Judge:

Plaintiff Margaret Ososky, an employee of the Foreign Service, appeals from an order of Judge Gasch, November 9, 1981, dismissing her claim under the Equal Pay Act, 29 U.S.C. Sec. 206(d) (1976), for failure to exhaust administrative remedies. Although the dismissal was technically without prejudice--Ososky would be permitted to refile after invoking the Foreign Service's own grievance procedures--the district court expressed "grave doubts" that the Equal Pay Act applies to the Foreign Service.

We reverse and remand for further proceedings. We hold that the Foreign Service must comply with the Equal Pay Act and that a claim under the Act may not be dismissed for failure to exhaust administrative remedies.

I. FACTS

Since this appeal arises from a dismissal on the pleadings, we assume the facts to be as stated in the complaint.

Ososky is a Foreign Service Reserve Officer, class 5, with the International Communication Agency (ICA), a branch of the Foreign Service. The defendant is the director of the Agency.

In 1978, after eighteen years in the Service, Ososky became the "Budget Analyst" for the Exhibits Service of the ICA's Programs Directorate, a position she held until late in 1980. She was given sole responsibility for the financial planning and evaluation of the exhibits aspect of the United States' cultural programming under several international agreements. As a budget analyst, Ososky was paid at a rate applicable to United States Civil Service positions of the GS-12 level. During the same years, male budget officers in the Press and Television Sections of the Programs Directorate were paid at the higher GS-14 rate for work substantially equivalent to Ososky's.

In 1979, Ososky made several attempts to have her position upgraded and her pay increased. When these efforts proved unsuccessful, she filed a complaint with the EEOC. She claimed that the ICA was discriminating against her on the basis of gender by paying her less for work substantially equal to that performed by higher-paid male members of the Service. She also complained that she was barred from consideration for the higher-paying GS-14 positions, because she was "being discriminatorily kept at the GS-12 level."

Ososky's complaint was still before the EEOC when she filed this action in November 1980, claiming that the ICA had violated her rights under the Equal Pay Act. The defendant moved to dismiss the complaint on the ground that Ososky had not exhausted administrative remedies available under the Foreign Service Act, 22 U.S.C. Secs. 4131-4140 (Supp.1981) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16(c), and on the additional ground that, in any event, the Equal Pay Act does not apply to the Foreign Service. Expressing doubt that the Equal Pay Act could apply to the Foreign Service, the district court dismissed the complaint for failure to exhaust administrative remedies.

II. EXHAUSTION

We find it unnecessary to determine the adequacy of the administrative remedies available within the Foreign Service Grievance System, 22 U.S.C. Secs. 4131-4140. For we hold that the Equal Pay Act, unlike Title VII of the 1964 Civil Rights Act, provides for immediate judicial review of claims for equal pay and that the district court could not dismiss the complaint for failure to exhaust available remedies.

The Equal Pay Act of 1963 (EPA), 29 U.S.C. Sec. 206(d) (1976), was enacted as an amendment to the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 201 et seq. (1976). By providing that "any amounts owing to any employee which have been withheld in violation of [the EPA] shall be deemed to be unpaid minimum wages or unpaid overtime compensation under [the FLSA]," 29 U.S.C. Sec. 206(d)(3), Congress required that the EPA be enforced through the then long familiar FLSA procedures for recovering minimum wages and overtime pay. H.Rep. No. 309, reprinted in U.S.Code Cong. & Ad.News 687, 688, 88th Cong., 1st Sess. (1963). These procedures do not include an exhaustion requirement. We believe that a comparison of the different remedial provisions and similar histories of the FLSA and of Title VII, shows that the failure expressly to require exhaustion of claims under the former reflects a deliberate Congressional decision. In 1972 when it extended the scope of Title VII to cover federal employees, Congress added language to the statute expressly requiring federal employees to exhaust administrative remedies before filing an action in federal district court. Brown v. GSA, 425 U.S. 820, 832, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976). See Equal Employment Opportunity Act, Pub.L. 92-261, Sec. 11 (March 24, 1972), codified at 42 U.S.C. Sec. 2000e-16(c). Against this background, the 1974 amendments extending the FSLA's minimum wage guarantees and discriminatory pay protections to federal employees stand in marked contrast. For, although Sec. 6(b) of the 1974 FLSA amendments, codified at 29 U.S.C. Sec. 204(f), authorized the Civil Service Commission (now the Office of Personnel Management) to administer the FLSA, Congress specifically provided that "nothing in this subsection shall be construed to affect the right of an employee to bring an action for unpaid minimum wages, or unpaid overtime compensation, and liquidated damages under Sec. 216(b) of this title." Id. And Sec. 216(b), as amended in 1974, provides simply that an action to recover liability under the EPA may be maintained "against any employer (including a public agency) in any Federal or State Court of competent jurisdiction." 29 U.S.C. Sec. 216(b) (1976). Section 216(b) makes no reference to the availability of administrative remedies.

These provisions make it clear that "the Equal Pay Act, unlike Title VII, has no requirement for filing administrative complaints and awaiting administrative conciliation efforts." County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). See also Nitterright v. Claytor, 454 F.Supp. 130, 24 Fair Emp.Prac. Cases 678, 684 (D.D.C.1978); Cox v. University of the District of Columbia, 24 Fair Emp.Prac. Cases 690 (D.D.C.1981). Had Congress intended to require exhaustion when it enacted the 1974 FLSA amendments, it would have done so expressly as it did when it made similar amendments to Title VII. Nothing in the legislative history suggests that the omission was an oversight.

Moreover, permitting the district court to require exhaustion in its discretion would be inconsistent with the statute's remedial scheme. The FLSA provides compensatory relief for victims of wage discrimination. That relief is not unlimited; back pay may be awarded only for the period beginning two years before filing suit. 29 U.S.C. Sec. 255(a). Thus, the right to back pay is continually eroded as the EPA claimant pursues administrative remedies. Had Congress intended to permit courts to require EPA plaintiffs, like the Title VII plaintiffs, to run an administrative gauntlet as a precondition to filing suit, Congress would have provided, as it did when it amended Title VII, that back pay could be received for the period beginning two years before either filing an action in federal court or commencing administrative proceedings.

Finally, we do not believe that, in the ordinary EPA case, the court should stay the proceedings pending administrative hearings. Defendant apparently suggests that EPA plaintiffs should file a complaint in federal court to preserve their back pay awards, then proceed to have the action stayed pending exhaustion of administrative remedies. Then, after those remedies have been exhausted, the plaintiff could return to federal court and pursue her judicial remedies. We see no warrant for such a scheme. The courts have been charged with making the initial factual determinations relevant to the Equal Pay Act. This case does require the resolution of the sort of complex and technical factual issues which might be better resolved by an administrative agency with special competence in the area. Cf. Ogden v. Zuckert, 298 F.2d 312 (D.C.Cir.1961) (Air Force major sought declaratory judgment establishing right to be retired rather than discharged because of physical disability); Sohm v. Fowler, 365 F.2d 915 (D.C.Cir.1966) (Lieutenant Commander, United States Coast Guard, sought to avoid retirement for having been passed over; the court sought to avoid difficult constitutional issues by staying the case pending the completion of ongoing proceedings before the Board for Correction of Military Records to resolve complex and technical factual issues.) Douglas v. Hampton, 512 F.2d 976, 1014-15 (D.C.Cir.1975) (question of validity of...