Bethel v. Jefferson

Citation589 F.2d 631
Decision Date09 November 1978
Docket NumberNos. 76-1941,76-1960,s. 76-1941
Parties18 Fair Empl.Prac.Cas. 789, 18 Empl. Prac. Dec. P 8694, 191 U.S.App.D.C. 108 James A. BETHEL, Jr., Appellant, v. Burtell M. JEFFERSON, Chief of Police, Metropolitan Police Department. Ernest E. HEMBY, Appellant, v. Burtell M. JEFFERSON, Chief of Police, Metropolitan Police Department.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

John G. Gill, Jr., Rockville, Md., with whom Chris Marder, Rockville, Md., was on the brief for appellants.

S. Perry Jones, Asst. Corp. Counsel, Washington, D. C., at the time the briefs were filed, for appellee. John R. Risher, Jr., Corp. Counsel, Washington, D. C., at the time the briefs were filed, Louis P. Robbins, Principal Deputy Corp. Counsel, Richard W. Barton, Deputy Corp. Counsel, Ted P. Gerarden, Asst. Corp. Counsel, Washington, D. C., at the time the briefs were filed, and George T. Masson, Jr., Asst. Corp. Counsel Washington, D. C., were on the brief for appellee.

Philip B. Sklover, Washington, D. C., filed a brief on behalf of the Equal Employment Opportunity Commission, as amicus curiae, urging reversal in No. 76-1941 and affirmance in No. 76-1960. Charles L. Reischel, Washington, D. C., also entered an appearance for the Equal Employment Opportunity Commission, as amicus curiae.

Marleigh Dover Lang, Washington, D. C., was on brief for Equal Employment Opportunity Commission, amicus curiae.

Barbara Allen Babcock, Asst. Atty. Gen., and William Kanter, Atty., Dept. of Justice, Washington, D. C., filed a brief on behalf of the Civil Service Commission, as amicus curiae, urging affirmance.

Before McGOWAN, TAMM and ROBINSON, Circuit Judges.

Opinion for the court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

These appeals present us primarily with the task of determining which section of Title VII of the Civil Rights Act of 1964, 1 as amended by the Equal Employment Opportunity Act of 1972, 2 officers of the District of Columbia Metropolitan Police Department must utilize when administratively or judicially pressing claims of employment discrimination. In each of these cases the District Court held 3 that the proper route is Section 706, which requires, as a precondition to judicial review, enlistment of the efforts of the Equal Employment Opportunity Commission. 4 Because appellants had not complained to the Commission and consequently had not received a "right-to-sue letter" 5 from it, their employment discrimination suits were dismissed. 6 As an alternative ground, the court held that Title VII jurisdiction was lacking in any event since, in its view, the alleged acts of discrimination occurred prior to March 24, 1972, the date upon which Title VII became applicable to governmental employees. 7 The court felt that the 1972 Act had no retroactive force because appellants had no formal complaints of discrimination pending, administratively or otherwise, on that date. 8

We, too, find that Section 706 sets forth the Title VII remedy enjoyed by District policemen, 9 but we disagree with the conclusion that appellants' failure to first pursue their causes with the Commission precludes this litigation. 10 We also perceive error in the determination that no post-1972 discrimination is present in these cases. 11 We accordingly reverse the judgments appealed from and remand the cases to the District Court for further proceedings. 12

I. FACTUAL AND PROCEDURAL BACKGROUND

The two appellants are uniformed officers of the Metropolitan Police Department. Each alleges racial discrimination in disciplinary and other actions taken by the Department against them. Beyond that, their cases differ in material respects.

A. Bethel's Case

Appellant Bethel faced a police trial board on charges stemming from an incident occurring in July, 1971. In October of that year, the board recommended that he be removed from the force. The disposition would have become final had Bethel not appealed 13 to the Mayor of the District of Columbia 14, which he did, arguing that the board's action was not sufficiently supported by evidence in the record. While the board's recommendation was under review by the Mayor, Bethel remained suspended but still a member of the force.

On August 22, 1974, the Mayor accepted the board's factual findings but changed the outcome to suspension without pay for 35 months, approximately the period of time it had taken to resolve the appeal. Bethel first learned of the Mayor's decision on September 19. On October 1, he complained to the District's Office of Human Rights, the agency designated to entertain complaints of discrimination emanating from employment with the District of Columbia Government, 15 and to the Civil Service Commission. Since, however, Bethel did not occupy a federal civil service position, the Commission held that the matter was not within its jurisdiction. The Office of Human Rights also disclaimed jurisdiction, but on the ground that Bethel had not complained to it within 15 days of the July, 1971, incident. Bethel filed suit in the District Court within 30 days of those decisions.

B. Hemby's Case

Appellant Hemby's grievances are that on several occasions he was harassed by Department personnel because of his race and religion 16 and in retaliation for complaints charging discrimination prohibited by Title VII. 17 In all, Hemby faced three police trial boards, and each time he lost. In one such instance a disciplinary action the decision of the board was appealed to the Mayor who, on April 13, 1973, rejected the board's recommendation of suspension and ordered a forfeiture of six months' backpay. On May 24, within 30 days of receipt of notice of the Mayor's disposition, Hemby initiated his lawsuit.

Thereafter, on December 14, 1973, Hemby appeared before another trial board. Again it was recommended that he be separated from the force, and again he appealed on the merits to the Mayor. For a procedural defect irrelevant to this litigation, the Civil Service Commission ordered that Hemby be restored to the payroll pending decision of the administrative appeal, which apparently still remains unresolved. Hemby has supplemented that appeal with a brief arguing that the trial board acted in retaliation for the filing of his civil rights suit against the Department. On July 1, 1974, Hemby amended his complaint in the District Court to allege that that trial board proceeding was attributable to racial and religious discrimination and his past Title VII charges.

II. THE CONTINUING NATURE OF THE DISCRIMINATION ALLEGED

At the outset, we must examine the contention that the assertedly discriminatory acts against appellants took place prior to the effective date of the 1972 amendments to Title VII, and the further contention that since no administrative or judicial complaints were pending at that time, 18 their claims are not cognizable thereunder. These arguments, we think, may easily be dismissed.

Appellants challenge as discriminatory not only the incidents antedating the convening of the trial boards but also the trial board proceedings themselves and the punitive measures ensuing therefrom, which allegedly were precipitated by the earlier incidents. Each claim in suit encompasses not an assortment of unrelated happenings, but a chain of connected events continuing over a considerable time span a chain in which pre-1972 episodes were foremost and seminal links. In no instance could this type of discrimination become consummated until the particular adverse personnel action attained finality. 19

For Bethel, that occurred in 1974 as a result of the Mayor's decision to suspend him without pay for 35 months; until then, under District of Columbia law, the trial board's decision was simply a "recommendation." 20 And the Mayor has yet to reach a final decision on the recommendation of Hemby's last trial board. On the other hand, the personnel actions taken by Hemby's first two trial boards apparently did achieve finality before Title VII was expanded to cover employees such as Hemby, but this should not conclude judicial inquiry. There remains the question whether the entire series of events pre-1972 as well as post-1972 comprised a concerted and continuing course of discrimination against Hemby enduring well past 1972. 21 We intimate no view in this regard, and leave this aspect of Hemby's case for possible exploration in the District Court on remand. 22

III. THE STATUTORY ROUTE TO REDRESS

We turn now to ascertain the statutory path that officers of the Metropolitan Police Department must follow in bringing and maintaining charges of employment discrimination. As has been aptly noted, Title VII " 'leaves much to be desired in clarity and precision,' " 23 and the instant cases exemplify that shortcoming. The two appellants chose to proceed under Section 717, 24 which deals with federal employment, and which contemplates exhaustion of remedies afforded by the employing agency and, at the employee's election, subsequent utilization of the processes of the Civil Service Commission. 25 Admitting that appellants are covered by Title VII, appellee argues that their proper recourse lies in Section 706, 26 which pertains to employees in the private sector and in state and local governmental services. The difference in viewpoint is important because a prerequisite to suit under Section 706 is obtainment of a "right-to-sue" letter from the Equal Employment Opportunity Commission 27 something neither appellant acquired because neither ever complained to that agency.

A. The Legislative History

Congress passed the Equal Employment Opportunity Act of 1972 28 to extend the protections of Title VII to most federal, state and local government employees. 29 The problem we now face silently dogged this legislation throughout its history.

In the House, the Hawkins Bill 30 would have imposed the discrimination ban...

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