Ayon v. Sampson, 75-3317

• Decision Date: 18 October 1976
• Docket Number: No. 75-3317,75-3317
• Citation: 547 F.2d 446
• Parties: 14 Fair Empl.Prac.Cas. 149, 12 Empl. Prac. Dec. P 11,264 Gaye Levy AYON, Plaintiff-Appellant, v. Arthur F. SAMPSON, Administrator, General Services Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 446

547 F.2d 446

14 Fair Empl.Prac.Cas. 149,

12 Empl. Prac. Dec. P 11,264

Gaye Levy AYON, Plaintiff-Appellant, v. Arthur F. SAMPSON, Administrator, General Services Administration, Defendant-Appellee.

No. 75-3317.

United States Court of Appeals Ninth Circuit.

Oct. 18, 1976.

Lembhard G. Howell (argued), Seattle, Wash., for plaintiff-appellant.

Thomas B. Russell, Asst. U. S. Atty. (argued), Seattle, Wash., for defendant-appellee.

Before KOELSCH and GOODWIN, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, Senior District Judge:

In this action for damages appellant, Gaye Levy Ayon, ¹ claims sex discrimination in her non-selection for a management intern position and retaliatory harassment in her employment, in violation of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq. ² The district court adopted findings of fact and conclusions of law of a special master and dismissed the complaint, finding that there had been no discrimination in the non-selection of appellant for the management intern position and that the court lacked jurisdiction with respect to the retaliatory harassment claim. We reverse the holding on lack of jurisdiction and remand to the district court for further consideration of this claim.

Background

Appellant, an employee of the United States Forest Service, was employed as a secretary and later as an administrative assistant for the Seattle Federal Executive Board. On March 29, 1972, she filed an application for one of two management intern positions ³ with the General Services Administration (GSA). Appellant's application was considered with those of two men, the men being selected to fill the positions. The selecting official, William McVay, Director of Administration of GSA for Region 10, found that the two male applicants were more fully qualified than was appellant.

On June 14, 1972, appellant filed an informal complaint with the Civil Rights Division of GSA, charging violation of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 (an amendment to the Civil Rights Act of 1964), in that she had been discriminated against because of her sex. On July 5, 1972 appellant filed a formal complaint against McVay and Roy Vernstrom, Regional Administrator of GSA for Region 10 and chairman of the Federal Executive Board, ⁴ alleging sex discrimination in her non-selection.

On July 20, 1972, appellant received a letter from the Regional Personnel Officer for the Forest Service, Region 6, advising her that her employment would be terminated effective August 4, 1972, because she had failed to satisfactorily complete her probationary employment period. On August 3, 1972, appellant received another letter advising her that the termination letter of July 20 had been withdrawn and that she had satisfactorily completed her probationary period. ⁵

On July 27, 1972, appellant filed a second informal complaint of sex discrimination charging retaliation harassment. On August 10, 1972, she filed a formal complaint alleging, inter alia, that the Forest Service had conspired with GSA to terminate her employment in retaliation for her previous complaint.

On November 22, 1972, appellant received a letter from the Director of Civil Rights of GSA advising her that her complaints had been investigated and that no evidence had been found to support the charges of sex discrimination or harassment. The Director did note, however, that "a full implementation of the agency Equal Employment Opportunity Program should have taken into account ways to correct Region 10's underutilization of women workers" and informed appellant that she would be offered a management intern position in Region 10 no later than July 1, 1973. Appellant did in fact assume a management intern position on April 1, 1973. In the meantime, she had filed this action on February 6, 1973, seeking review of the agency decision on her sex discrimination complaints.

Proceedings in District Court

Following an extended hearing, the special master entered a detailed oral opinion on November 4, 1974, followed by detailed findings of fact and conclusions of law filed on March 20, 1975. The district court, after reviewing the record, adopted the report of the special master in its entirety, together with his findings of fact and conclusions of law. Pursuant to the recommendation of the special master, a judgment of dismissal was entered.

With respect to appellant's claim of sex discrimination in her non-selection for the management intern position, the special master found, inter alia, that "All three of the candidates were qualified, however, it was reasonable for Mr. McVay to conclude at the time he made his decision that Mr. Henry and Mr. Schildmeyer were more highly qualified for the positions." The conclusions of law on this claim read:

"2. Mr. McVay's judgment that Miss Levy had such difficulties in working around and with other people and in office situations was a legitimate basis for evaluating her qualifications. ⁶

"3. Mr. McVay's consideration of the candidates on the basis of their backgrounds in finance, economics, accounting and business or his consideration as to which future available position they might fit into, were not proper, given the objectives of the management intern program of GSA.

"4. There was nothing in the Agency's Affirmative Action or Equal Employment Opportunity Program that would require the Agency to select a qualified woman applicant in preference to male applicants with higher qualifications.

"5. Sex discrimination did not play a part in the nonselection of Gaye Levy, for the Management Intern Position."

With respect to the charge of harassment and retaliation, the district court adopted the conclusion of the special master that the court did not have jurisdiction because "Congress did not, in passage of 42 U.S.C. 2000(e)-16, refer to or incorporate the language of the part of the 1964 Civil Rights Act pertaining to harassment and retaliation (42 U.S.C. 2000(e)-3) as they did in incorporating into 42 U.S.C. 2000(e)-16 the language referring to discrimination in hiring, firing and promotion as found in 42 U.S.C. 2000(e)-2."

Jurisdiction of Retaliation Claim

Appellee confesses error with respect to the conclusion that the court lacked jurisdiction of the claim of retaliation and harassment. We agree with the parties that Congress, in enacting 42 U.S.C. § 2000e-16 and thereby extending the equal employment opportunity provisions of the Civil Rights Act to federal employees, intended to include the protections from harassment and retaliation embodied in the Civil Rights Act.

Section 2000e-16(d) reads:

"(d) The provisions of section 2000e-5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder."

Section 2000e-5(g) provides in part:

"No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title." (Emphasis added.)

Section 2000e-3(a) is the provision prohibiting retaliation and harassment:

"It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, . . . because he has opposed any practice made an unlawful employment practice by this subchapter (42 U.S.C. §§ 2000e-2000e-17), or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."

When these sections are read together, it is clear that Congress incorporated the protections against retaliation in its enactment of § 2000e-16.

This conclusion is supported by the statement in House Report No. 92-238 on the proposed enactment of § 2000e-16:

"Accordingly there can exist no justification for anything but a vigorous effort to accord Federal employees the same rights and impartial treatment which the law seeks to afford employees in the private sector." U.S.Code Cong. & Admin.News, pp. 2137, 2158 (1972).

We conclude that in enacting § 2000e-16, Congress intended to, and did incorporate into that section the provisions of the Civil Rights Act prohibiting harassment or retaliation for the exercise of those remedial rights established by the Act. Accordingly we find that the district court had jurisdiction to consider appellant's charges of retaliation.

Discrimination

Appellant argues, essentially, that where an agency, in the employment context, must choose between a qualified man and a qualified woman, the affirmative action policy established by Executive Order 11478 ⁷ "suggests a duty to select the woman." She contends that the affirmative action policy and the underrepresentation of women in the GSA should have been given greater consideration in the selection decision. GSA's failure to do so, it is argued, raises serious doubt as to its good faith and suggests the presence of subtle discrimination. ⁸

Appellee argues that McVay did not select appellant primarily because of her personality problems, and not because of her sex. The Government contends that McVay, in so doing, was following the hiring mandates of 5 C.F.R. 330.101 which states:

"An appointing officer may fill a position in the competitive service by any of the methods authorized in this chapter. He shall exercise his discretion in each personnel action solely on the basis of merit and fitness and without the discrimination prohibited in Part 713 of this chapter."

Appellee further contends that even if the affirmative action plan is considered, the Government is not required to select a qualified woman...