751 F.2d 1405 (D.C. Cir. 1985), 84-5092, Ethnic Employees of Library of Congress v. Boorstin

Docket Nº:84-5092, 84-5093.
Citation:751 F.2d 1405
Party Name:ETHNIC EMPLOYEES OF the LIBRARY OF CONGRESS, et al., Appellants v. Daniel J. BOORSTIN, et al. ETHNIC EMPLOYEES OF the LIBRARY OF CONGRESS, et al., Appellants v. Daniel J. BOORSTIN, Librarian of Congress.
Case Date:January 11, 1985
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1405

751 F.2d 1405 (D.C. Cir. 1985)

ETHNIC EMPLOYEES OF the LIBRARY OF CONGRESS, et al., Appellants

v.

Daniel J. BOORSTIN, et al.

ETHNIC EMPLOYEES OF the LIBRARY OF CONGRESS, et al., Appellants

v.

Daniel J. BOORSTIN, Librarian of Congress.

Nos. 84-5092, 84-5093.

United States Court of Appeals, District of Columbia Circuit

January 11, 1985

Page 1406

[Copyrighted Material Omitted]

Argued Nov. 16, 1984.

Joel D. Joseph, Washington, D.C., for appellants.

John W. Polk, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., and Lana Kay Jones, Asst. Gen. Counsel, Library of Congress, Washington, D.C., were on brief, for appellee.

Before WALD, EDWARDS and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

In these two consolidated cases, an organization called the Ethnic Employees of the Library of Congress (EELC) and several of its officers and members appeal from summary judgment dismissing claims against the Librarian of Congress, the Library of Congress, and the United States. 1

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In its first action, No. 84-5092, the EELC alleged that the Library violated section 717 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16, and the first and fifth amendments to the Constitution by denying the EELC privileges granted to other recognized employee organizations. The district court held that because two EELC officers unsuccessfully asserted constitutional claims based on similar discrimination in a previous lawsuit, claim preclusion barred other EELC members and the organization itself from litigating the constitutional issues in this case. The district court then dismissed the Title VII claims for failure to exhaust administrative remedies. See Ethnic Employees v. Boorstin, Civ. Nos. 80-2163 & 82-2264, slip op. at 4-5 (D.D.C. Dec. 20, 1983) [hereinafter cited as District Court Op.]. We find that claim preclusion does not bar the constitutional claims in No. 84-5092 and remand those claims for further proceedings. We affirm the district court's dismissal of the Title VII claims in that case.

The EELC's second action, No. 84-5093, was filed after the Library withdrew recognition of EELC as an official employee organization. The EELC alleged that the Library's decision discriminated on the basis of national origin in violation of Title VII, and also violated the first and fifth amendments. The district court dismissed the constitutional claims on the ground that Title VII is the exclusive remedy for charges of discrimination in federal employment. It then held that the EELC could not make out a prima facie case under Title VII. District Court Op. at 5-7. We find that Title VII is the exclusive remedy for some but not all of the EELC's constitutional claims, and we therefore affirm in part and reverse in part the district court's constitutional holding. We find in addition that the district court misstated the appropriate standard for determining, on a defendant's motion for summary judgment, whether a Title VII plaintiff may succeed at trial in establishing a prima facie case. We therefore vacate summary judgment on the Title VII claims in No. 84-5093 and remand those claims, together with the constitutional claims that may be maintained apart from Title VII, for further proceedings.

I. NO. 84-5092

  1. Background

    The EELC is an organization of Library employees "dedicated to promoting non-discriminatory treatment of ethnic and racial minorities at the Library." Affidavit of George E. Perry p 3, R. Item 7. 2 In 1973, George E. Perry, then an employee of the Library and an appellant in both of the cases before us today, founded the EELC. Id. paragraphs 2-3. The Library agrees that from 1973 until approximately April of 1981, the EELC complied with Library of Congress Regulation [hereinafter cited as LCR] 2022-2 (1975), which governs the official recognition and conduct of cultural and social organizations composed of Library employees. Affidavit of Doris E. Pierce p 6, R. Item 15, Exhibit 5.

    However, the two principal officers of the EELC, George E. Perry and Howard R.L. Cook, have both been involved in numerous controversies with the Library administration, some of which related to activities they conducted in connection with the EELC. In 1974, Perry, the president of the EELC, was suspended without pay for ninety days based on various charges of misconduct, among them the authorship of a published letter that was highly critical of Library policies. See Affidavit of George E. Perry p 4, R. Item 7. Perry alleges that the Library subsequently opened mail addressed to him as president of the EELC, unsuccessfully pressured him not to testify against the nomination of Daniel J. Boorstin as Librarian of Congress,

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    and otherwise harassed him. In 1977, the Library discharged Perry, in part for allegedly making false and malicious statements about another Library employee.

    Cook, the vice president of the EELC, has been involved in similar controversies. Some of these have apparently centered on his activities on behalf of the EELC and the Black Employees of the Library of Congress (BELC), a separate employee organization not involved in these lawsuits. 3 Others centered on Cook's and Perry's individually expressed opposition to various Library actions and policies. In July of 1977, Cook was suspended without pay for allegedly making statements similar to those for which Perry was discharged.

    Cook and Perry have previously brought two lawsuits concerning these events. One of these actions, brought in the United States Court of Claims against the United States, challenged the statutory and constitutional validity of the Library of Congress regulation under which Perry was discharged and Cook was suspended. Perry also argued that in any event, discharge was an unduly harsh punishment for his conduct. The court rejected these claims and granted summary judgment for the United States. Cook v. United States, No. 100-80C, mem. at 2, 5-6 (Ct.Cl. Mar. 13, 1981) (disposition reported at 652 F.2d 70), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981) [hereinafter cited as Cook I ].

    In February of 1979, Cook and Perry brought another action in the United States District Court for the District of Columbia against the Librarian of Congress. This action sought damages, rescission of the disciplinary measures imposed on Cook and Perry, and wide-ranging equitable relief. Among the many allegations of mistreatment and discrimination were some that described Library efforts to impede actions Cook and Perry took on behalf of the EELC and the BELC, and retaliation against Cook and Perry based on those actions. The district court dismissed the action on February 11, 1980. Cook v. Boorstin, Civ. No. 78-2312 (D.D.C. Feb. 11, 1980) [hereinafter cited as Cook II.]. It ruled that Title VII was the exclusive judicial remedy for claims of discrimination in federal employment, and the plaintiffs therefore could not assert claims under the first and fifth amendments. Because Cook and Perry were unwilling to proceed only on their Title VII claims, those claims were also dismissed. Id. This court dismissed Cook and Perry's appeal on the grounds that they had waived their Title VII claims, and that the judgment against them in the court of claims was res judicata as to their other statutory and constitutional claims. See Cook v. Boorstin, No. 80-1288 (D.C.Cir. Sept. 11, 1981) (disposition reported at 670 F.2d 1234).

    The EELC, Perry, Cook, and five other members of the EELC brought the first of the consolidated actions involved in this appeal on August 22, 1980. See Complaint, R. Item 1. They asserted claims against the Librarian of Congress, the Library, and the United States under section 717 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16, and the first and fifth amendments. The complaint alleged that the Library had attempted to gain access to the EELC's membership list, denied its request for office space, and refused it other services generally provided to recognized organizations. See Complaint p 14, R. Item 1. The complaint also alleged that the Library refused the EELC's request for a dues checkoff system, id. p 15; interfered with the relationship between the EELC and the BELC, id. p 16; and took actions

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    with the purpose and effect of suppressing criticism by EELC members of Library policies, see id. paragraphs 24-26. Finally, the complaint asserted that "EELC members are deprived of the right to have the effective assistance of the organization in the processing of personnel grievances within the Library," id. p 28, allegedly in violation of the fifth amendment.

    The district court concluded that the EELC was in privity with the Cook II plaintiffs, and that the EELC's claims were the same, for purposes of claim preclusion, as those asserted in Cook II. It therefore held that res judicata barred the EELC's constitutional claims. The court then dismissed the Title VII claims for failure to exhaust administrative remedies. District Court Op. at 4-5.

  2. Preclusion of the Constitutional Claims

    Persons who are not parties to an action ordinarily are not bound by the judgment in the action. See 1 Restatement of Judgments, Second Sec. 34(3) (1981). Nonparties to an action are said to be in "privity" with a party and therefore bound by a judgment only when, under any of several related but distinct exceptions to the general rule, "the relationship between one or more persons is such that a judgment involving one of them may justly be conclusive upon the others, although those others were not party to the lawsuit." Gil & Duffus Servs., Inc. v. Islam, 675 F.2d 404, 405 (D.C.Cir.1982) (per curiam) (citation omitted).

    There is no claim in this case that all...

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