CHOEN v. Austin, Civ. A. No. 92-5623.

• Decision Date: 13 September 1993
• Docket Number: Civ. A. No. 92-5623.
• Citation: 833 F. Supp. 512
• Parties: Robert N. COHEN, Plaintiff, v. Richard G. AUSTIN, Administrator General Services Administration, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

833 F. Supp. 512

Robert N. COHEN, Plaintiff, v. Richard G. AUSTIN, Administrator General Services Administration, Defendant.

Civ. A. No. 92-5623.

United States District Court, E.D. Pennsylvania.

September 13, 1993.

Dennis L. Friedman, Philadelphia, PA, for plaintiff.

David R. Hoffman and Lois W. Davis, U.S. Attorney's Office, Philadelphia, PA, for defendant.

MEMORANDUM AND ORDER

JOYNER, District Judge.

Presently before the Court is the summary judgment motion of defendant Richard G. Austin, Administrator of the General Service Administration ("GSA"), pursuant to Rule 56 of the Federal Rules of Civil Procedure. This matter stems from plaintiff's claims which arise under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiff alleges that GSA discriminated against him based on his religion and reprisal for engaging in protected activity by removing him from his position with GSA as a contract specialist on July 7, 1989 and denying his within-grade increase on December 15, 1988.

In the motion for summary judgment, defendant alleges that this Court does not have jurisdiction to decide this case because plaintiff did not meet the minimum prima facie standards for alleging discrimination at the administrative level, and as such, plaintiff's claims of discrimination are frivolous. Defendant further asserts that the proper place for appealing such claims is with the Federal Circuit Court of Appeals, pursuant to 5 U.S.C. § 7703(b)(1). Finally, defendant asserts that he is entitled to summary judgment because this Court cannot transfer this case to the Federal Circuit since plaintiff failed to file this civil action in a timely manner. However, for the reasons discussed more fully below, we find that defendant is not entitled to summary judgment.

Standard

In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The court is required to determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In making this determination, all reasonable inferences must be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 256, 106 S.Ct. at 2512. While the movant bears the initial burden of demonstrating an absence of genuine issues of material fact, the nonmovant must then establish the existence of each element of its case. J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir.1990), cert. denied, 499 U.S. 921, 111 S.Ct. 1313, 113 L.Ed.2d 246 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)).

Facts

On December 15, 1988, plaintiff, a former GS-12 contract specialist with GSA, was denied a within-grade increase on the ground that he failed to achieve an acceptable level of competence in his position. Plaintiff requested reconsideration of the denial of the within-grade increase, but this request was denied by GSA on February 7, 1989.

Plaintiff then appealed to the Merit Systems Protection Board ("MSPB"). In plaintiff's petition for appeal, plaintiff stated "RELIGIOUS DISCRIMINATION. See also answer to paragraph 21"¹ in response to the following question "If you believe you were discriminated against by the agency GSA because of either your race, color, religion, sex, national origin, marital status, political affiliation, handicapping condition, or age, indicate so and explain why you believe it to be true. You must indicate, by examples, how you were discriminated against."² In accordance with GSA appeal procedures, an administrative judge (or Presiding Officer) was assigned to decide the appeal. Nine administrative hearings were held between May 15, 1989 and June 15, 1989. After the final hearing, however, the administrative judge left the MSPB without rendering a decision in order to accept a position as an administrative judge with the Social Security Administration. Plaintiff's appeal was dismissed without prejudice on July 24, 1989, with permission to refile the appeal within twenty days.

In the interim, plaintiff was removed from his position on July 7, 1989, after GSA previously gave notice to plaintiff that it was considering such action because of plaintiff's unacceptable performance on the job. Plaintiff filed a petition for appeal from the removal action on July 24, 1989.³ He also refiled his appeal concerning the within-grade denial on August 10, 1989. Both appeals were then joined and the matter was assigned to another administrative judge.

Administrative Judge Sandra J. Squire thereafter issued an Initial Decision on June 1, 1990 which consisted of 108 pages. The Decision upheld GSA's actions regarding the denial of the within-grade increase and the removal of plaintiff from his position. Further, Judge Squire found that plaintiff had failed to make out a prima facie case of religious discrimination.⁴ Judge Squire also found that plaintiff did not establish his defense of reprisal, however, she analyzed his claim under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8), instead of under Title VII.

Plaintiff thereafter appealed this decision to the MSPB. On May 28, 1991, the MSPB upheld GSA's actions. See Cohen v. General Services Admin., 48 M.S.P.R. 451 (1991). Regarding the discrimination and reprisal claims, the MSPB agreed with Judge Squire's credibility determinations and fact findings and refused to review the issues further. Id. at 459-60. Additionally, the MSPB found that Judge Squire had erred in denying defendant's motion to exclude any evidence of discrimination pertaining to plaintiff's claims. (GSA had previously brought this motion on the basis that plaintiff failed to provide examples of religious discrimination in his petition for appeal). The MSPB based its decision on the fact that plaintiff failed to provide examples of discrimination as required by the petition for appeal form itself and 5 C.F.R. § 1201.153(a) (1989). Id. at 461. However, the MSPB noted that the error was harmless because Judge Squire correctly concluded that plaintiff failed to establish his affirmative defenses of discrimination and reprisal. The MSPB then remanded the case back to Judge Squire for further credibility determinations on other issues unrelated to the discrimination claim.

On April 6, 1992, the MSPB issued a second opinion after the full board heard plaintiff's second appeal. See Cohen v. General Services Admin., 53 M.S.P.R. 492 (1992). The MSPB once again affirmed Judge Squire's decision upholding GSA's actions. The MSPB again declined to reconsider its decision regarding the discrimination and reprisal issues, however.

Thereafter, on May 11, 1992, plaintiff appealed to the Equal Employment Opportunity Commission ("E.E.O.C.") pursuant to 5 U.S.C. § 7702(b)(1). After reviewing plaintiff's evidence of alleged discrimination and reprisal, the E.E.O.C. concluded that plaintiff failed to prove by a preponderance of the evidence that GSA's actions were the result of religious or reprisal discrimination.⁵ The E.E.O.C. then noted that its decision was final, and that plaintiff had thirty days from the date of receipt of its decision in which to file a civil action in the appropriate U.S. District Court.⁶ Plaintiff filed suit in this Court on September 25, 1992.

Discussion

At issue in this case is whether this Court has jurisdiction to hear plaintiff's claims, or alternatively, whether jurisdiction lies with the Federal Circuit Court of Appeals. Section 7703(b)(1) of Title 5 of the United States Code provides in pertinent part: "Except as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit." 5 U.S.C. § 7703(b)(1) (1980 & Supp.1993). Paragraph 2 governs allegations of discrimination raised pursuant to "section 717 of the Civil Rights Act of 1964." 5 U.S.C. § 7703(b)(2) (1980). Pursuant to section 7703(c), if a claim of discrimination is raised, then de novo review is proper in a federal district court. 5 U.S.C. § 7703(c)(3) (1980 & Supp.1993); Kean v. Stone, 926 F.2d 276, 281-83 (3rd Cir.1991); Gollis v. Garrett, 819 F.Supp. 446, 448-49 (E.D.Pa.1993). Alternatively, if there is no allegation that the employer's action was the result of unlawful discrimination, then review is proper in the Federal Circuit. Gollis, 819 F.Supp. at 448.

Additionally, when a "mixed case" is appealed (cases "which raise a procedural violation of civil service matter in conjunction with an allegation of discrimination"), James v. Levinson, 680 F.Supp. 187, 190 (E.D.Pa. 1988), it is within the jurisdiction of the district court, and not the Federal Circuit. Kean, 926 F.2d at 284; Gollis v. Garrett, 819 F.Supp. at 449. Further, an employee has the right to seek review of the MSPB's decision with the E.E.O.C., prior to filing suit in the district court. 5 U.S.C. § 7702(b)(1)-(5) (1980); 29 C.F.R. § 1613.421. The E.E.O.C. can review only the discrimination portion of the MSPB's decision. James, 680 F.Supp. at 190. The employee can then "wait to file suit in district court until after the E.E.O.C.'s final decision." Gollis, 819 F.Supp. at 449 (citing 5 U.S.C. § 7702(b); 29 C.F.R. 1613.421).

In defendant's motion, he asserts several disjointed theories to support his argument that jurisdiction is not proper before this Court, and that jurisdiction lies in the Federal Circuit. First, defendant states that plaintiff failed to properly plead his discrimination claim on the MSPB's petition for appeal form. Defendant contends that because of plaintiff's...