Brown v. General Services Admin.
| Decision Date | 21 November 1974 |
| Docket Number | No. 935,D,935 |
| Citation | 507 F.2d 1300 |
| Parties | 8 Fair Empl.Prac.Cas. 1299, 8 Empl. Prac. Dec. P 9802 Clarence BROWN, Plaintiff-Appellant, v. GENERAL SERVICES ADMINISTRATION et al., Defendants-Appellees. ocket 73-2628. |
| Court | U.S. Court of Appeals — Second Circuit |
Eric Schnapper, New York City (Jeff L. Greenup, Jack Greenberg, James M. Nabrit III, Johnny J. Butler, Joseph P. Hudson and Greemup & Miller, New York City, on the brief), for plaintiff-appellant.
Charles Franklin Richter, Asst. U.S. Atty., New York City (Paul J. Curran, U.S. Atty., and Gerald A. Rosenberg, Asst. U.S. Atty., New York City, on the brief), for defendants-appellees.
Before LUMBARD, HAYS and TIMBERS, Circuit Judges.
This appeal from a judgment entered September 28, 1973 in the Southern District of New York, Lloyd F. MacMahon, District Judge, dismissing the complaint in an action brought against an agency and officials of the federal government to redress alleged racially discriminatory employment practices presents the questions (1) whether Section 717(c) of the Equal Employment Opportunity Act of 1972 1 applies retroactively to claims arising before its enactment; (2) whether the statute pre-empts any other federal jurisdictional basis for appellants' claim; and (3) whether in any event appellant has failed to exhaust administrative remedies. We hold that each of these questions must be answered in the affirmative. We affirm.
Appellant Clarence Brown, a black, has been employed by the General Services Administration (GSA) Regional Office No. 2 (New York City) since 1957. He has not been promoted since 1966. His current job classification is Communications Specialist, GS-7, Telecommunications Division, Automated Data Telecommunications Service.
In December 1970, Brown was referred for promotion to GS-9 by his supervisors along with two white employees, Ownbey and Trost. All three were rated 'highly qualified'. Trost was the only one promoted. Brown filed an administrative complaint of racial discrimination with the GSA Equal Employment Opportunity Office. The complaint was withdrawn, however, after Brown was told that further promotions would soon be available and that he had been denied promotion because of lack of the requisite 'voice experience'.
Brown claims that he thereafter acquired full 'voice experience'. In June 1971, another GS-9 promotional opportunity opened. Brown and Ownbey again were rated 'highly qualified' for the opening. A third white employee also was available. Ownbey was chosen.
On July 15, 1971, Brown filed a second administrative complaint with the GSA Equal Employment Opportunity Office, claiming racial discrimination in the denial of his promotion. An investigative report was prepared. After review, the GSA Regional Administrator determined that there was no evidence of racial discrimination and so informed Brown by letter dated October 19, 1972. This letter also informed Brown that he could request a hearing on his complaint within seven days; but that if he did not make such a request, the determination would become the final agency decision and he would then have the right to appeal the GSA's decision to the Board of Appeals and Review of the Civil Service Commission (CSC), or to file a civil action in the fderal district court within 30 days.
Brown requested a hearing. It was held on December 13, 1972 before a complaints examiner of the CSC. Brown was represented by counsel. On February 9, 1973, the complaints examiner issued his findings and recommended decision. He found no evidence of discrimination and recommended that no action be taken on the basis of the complaint.
By letter dated March 23, 1973, received by Brown on March 26, the GSA Director of Civil Rights rendered the final agency decision that the evidence did not support the complaint of racial discrimination. The letter, pursuant to regulations, included a copy of the transcript of the hearing and of the findings and recommended decision of the complaints examiner. The letter also advised Brown of his options: (1) to file an appeal with the Board of Appeals and Review of the CSC within 15 days after receipt of the letter, in which case he could commence a civil action in the federal district court within 30 days after receipt of the Board's decision or 180 days after filing the appeal if no decision had been rendered; or (2) to commence a civil action in the federal district court within 30 days after receipt of the letter. 2
Brown did not file an appeal with the Board. Instead, he commenced the instant action in the district court on May 7, 1973-- more than 30 days after receipt of the letter. His complaint named as defendants the GSA and Brown's superiors, Joseph A. Daly, Albert Gallo and Frank A. Lapolla.
Basically, Brown's complaint alleged that he had been denied promotions because of his race. 3 Apparently he sought a promotion to Communications Assistant, GS-9, a supervisory position, and appropriate back pay, although some reference is made in his brief to damages based on discrimination.
The original complaint alleged jurisdiction under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (1970); Section 717 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. 2000e-16 (Supp. II 1972); 28 U.S.C. 1331 (1970); and the Declaratory Judgment Act, 28 U.S.C. 2201-02 (1970). The complaint also sought to invoke jurisdiction to secure protection of and redress deprivation of rights secured by 42 U.S.C. 2000e et seq. (1970) and 42 U.S.C. 1981 (1970). The complaint demanded 'such relief as may be appropriate, including injunctive orders, damages, costs, attorney's fees and back pay.' 4
On July 23, 1973, defendants moved to dismiss the complaint on the ground that the court lacked subject matter jurisdiction since Brown had not filed his somplaint within 30 days as required by Section 717(c) of the Equal Employment Opportunity Act of 1972 and his action therefore was barred by sovereign immunity.
On September 18, 1973, Brown moved for leave to file an amended complaint. The proposed amended complaint sought to add the CSC and Selbmann, the complaints examiner, as defendants, the original complaint having stated that the CSC had been joined as a party defendant although it was not actually named. The amended complaint also alleged as additional bases of jurisdiction 28 U.S.C. 1343(4) (1970) and the Tucker Act, 28 U.S.C. 1346(a) and (b) (1970), and added an allegation that more than $10,000 was in controversy. 5
In a memorandum opinion filed September 27, 1973, Judge MacMahon held that Brown's action was barred by sovereign immunity and that the district court therefore lacked subject matter jurisdiction. The judge also denied the motion for leave to amend on the ground that the original complaint had been dismissed and the proposed amended complaint did not change the situation.
The essential questions thus presented are whether Section 717(c) of the Equal Employment Opportunity Act of 1972 is to be applied retroactively to claims arising before but pending administratively at the time of its enactment; if so, whether that Act pre-empts any other avenue of judicial review; and whether in any event appellant has failed to exhaust administrative remedies.
We believe that a key to the resolution of these questions may be found in the legislative history and the statutory provisions that emerged.
Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, sex or national origin. 42 U.S.C. 2000e-2 to 2000e-3 (1970), as amended (Supp. II 1972). As originally enacted in 1964, however, it did not apply to federal employees. 42 U.S.C. 2000e(b) (1970). Executive Orders 6 and agency regulations covered their complaints of employment discrimination. 7 In general, the agency itself conducted an investigation and hearing on such complaints. Although the hearing examiner might come from an outside agency, especially the CSC, the head of the employee's agency made the final agency determination. Appeal lay only to the Board of Appeals and Review of the CSC. 8
No private right of action was provided for federal employees by Title VII until 1972 when Congress amended the Equal Employment Opportunity Act by adding Section 717(c). The legislative history of this section generally evinces a concern that job discrimination had not been eliminated in the federal government. It indicates the dissatisfaction of federal employees with the complaint procedures available. The committee reports show that Congress was not persuaded by testimony of agency officials that legislation was not needed because a private right of action already existed. They note that, even if such right was available, the federal employee faced defenses of sovereign immunity and failure to exhaust administrative remedies; and, even if such defenses were overcome, the relief available, such as back pay or immediate advancement, was in doubt. 9
It was against this backdrop that Congress in 1972 provided a private right of action for federal employees who were not satisfied with the agency or CSC decisions. Under Section 717(c), an aggrieved employee may commence an action in a federal district court within 30 days after a final order by his agency on a complaint of discrimination based on race, color, religion, sex or national origin, or within 30 days after a final order of the CSC on an appeal from such an agency decision, or after the elapse of 180 days from the filing of the initial complaint with the agency or of the appeal with the CSC if no decision has been rendered. No appeal need be taken to the CSC. The employee may go directly to court after the agency decision. 42 U.S.C. 2000e-16(c) (Supp. II 1972), note 1 supra.
Brown's administrative complaint was filed...
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