Clark v. Chasen

• Decision Date: 29 May 1980
• Docket Number: No. 78-1979,78-1979
• Citation: 619 F.2d 1330
• Parties: 22 Fair Empl.Prac.Cas. 1603, 23 Empl. Prac. Dec. P 30,982 Elizabeth K. CLARK, Plaintiff-Appellant, v. Robert B. CHASEN, Commissioner of the U. S. Customs Service, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1330

619 F.2d 1330

22 Fair Empl.Prac.Cas. 1603,

23 Empl. Prac. Dec. P 30,982

Elizabeth K. CLARK, Plaintiff-Appellant, v. Robert B. CHASEN, Commissioner of the U. S. Customs Service Defendant-Appellee.

No. 78-1979.

United States Court of Appeals, Ninth Circuit.

May 29, 1980.

Arthur Lazear, Oakland, Cal., argued for plaintiff-appellant; H. Tim Hoffman, Hoffman & Associates, Oakland, Cal., on brief.

Patrick Ramirez S. Bupara, Asst. U. S. Atty., San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before SNEED and FERGUSON, Circuit Judges, and TEMPLAR, ^* District Judge.

FERGUSON, Circuit Judge:

Plaintiff Elizabeth Clark appeals from the dismissal of her Title VII ¹ complaint for failure to exhaust administrative remedies. We reverse the decision of the district court and remand for trial.

Clark was employed by the United States Customs Service from May, 1959 to October, 1975. On June 3, 1975, she filed a formal complaint ² with the Service alleging discrimination on the basis of sex because she was denied the assistance and training given to the man who previously held her position. She later experienced emotional difficulties and voluntarily left the Service in October, 1975. She then filed an employment disability compensation claim based on her inability to continue working. ³

The Customs Service commenced an investigation into Clark's allegations of sex discrimination and informed Clark, by letter dated June 10, 1976, of its tentative determination that her allegations were unsupported. The letter advised her that she could request either a hearing before the Civil Service Commission or a final decision from the Director of Equal Opportunity of the Treasury Department. By letter dated June 21, 1976, she requested a hearing.

Clark was notified by letter, dated July 27, 1976, that a hearing had been scheduled for August 26, 1976, and that she had the right to be accompanied to the hearing by a representative of her choice.

On the day before the hearing, Clark was contacted by a physician appointed to examine her by the Department of Labor, pursuant to her disability claim. The physician recommended that Clark obtain an attorney to represent her in both the Title VII and the disability proceedings.

Just before the commencement of the August 26, 1976 hearing, Clark requested a continuance. ⁴ The hearing examiner denied her request, and she then refused to participate in the hearing. The examiner remanded Clark's complaint to the Treasury Department. On September 17, 1976, over fifteen months after she filed her formal complaint, Clark received notice from the Treasury Department that her complaint was cancelled for failure to prosecute. Clark was informed that she could appeal the cancellation administratively or begin a civil action in United States District Court. Accordingly, Clark brought this Title VII suit on October 15, 1976. The government filed a motion for summary judgment, arguing that there was no material issue of fact regarding the absence of discrimination. At the hearing set for argument on the summary judgment motion, the district judge, sua sponte, dismissed Clark's complaint for failure to exhaust administrative remedies.

Federal employees were brought within the rubric of Title VII of the Civil Rights Act of 1964 by the Equal Employment Opportunity Act (EEOA) of 1972. ⁵ The EEOA provided procedures for the handling of complaints alleging discrimination in federal employment. Pursuant to the EEOA, Section 717(c) of the Civil Rights Act, 42 U.S.C. § 2000e-16(c), ⁶ now provides that a federal employee may file a civil action in United States District Court within 30 days after receiving notice of final action by either the employing agency or by the Civil Service Commission (CSC) on appeal from the employing agency. In addition, the employee may file a civil action after 180 days from the filing of the complaint with the agency, or with the CSC on appeal, if no final action has been taken and the employee is aggrieved by the failure to take final action.

The legislative history of the EEOA, recounted at length in Hackley v. Roudebush, 520 F.2d 108 (D.C.Cir.1975), makes clear that Congress was deeply concerned with the "Government's abysmal record in minority employment" and the "rooting out of every vestige of employment discrimination within the federal government." Id. at 124, 136. See also, Sperling v. United States, 515 F.2d 465, 470 (3d Cir. 1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976). Congress was also concerned with the appearance of fairness and equality in federal employment, in addition to the actuality of equal opportunity. Hackley v. Roudebush, supra, 520 F.2d at 136. In light of these purposes, courts should construe the Title VII provisions liberally. Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978). ⁷

The legislative history also highlights Congress's discontent with agency procedures for handling complaints of employment discrimination in the federal government. Each agency had been, and continues to be, ⁸ almost entirely responsible for investigating itself. Even though hearing examiners are appointed from outside the agency, their responsibility is limited to making recommendations to the head of the agency, who makes the final agency determination. Hackley v. Roudebush, supra, 520 F.2d at 127-28 n.77, 137. In short, the "whole federal complaint process was considered to create a 'built-in conflict-of-interest.' " Id. at 137.

In Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), the Supreme Court stated that the legislative history of the EEOA was dominated by two themes:

The first was the inadequacy of the individually instituted and maintained trial de novo as an enforcement technique in the private sector under the Civil Rights Act of 1964. The second was federal employees' lack of adequate internal safeguards against employment discrimination and Congress' perception of their lack of access to the courts to raise claims of job discrimination.

Id. at 848-49, 96 S.Ct. at 1954 (footnotes omitted). The Court held that the civil action provided for in § 717(c) of the Civil Rights Act was clearly intended by Congress to be a trial de novo. ⁹ The Court thereby rejected the notion that de novo review was only mandated where the trial judge determined that such review was "appropriate." ¹⁰ Id. at 861, 96 S.Ct. at 1959.

Congress perceived de novo review in a United States District Court as essential to its program for eradicating employment discrimination. Courts, therefore, should not hinder the prospect of de novo review by burdening employees with exhaustion requirements beyond those prerequisites set out in the statute.

The Supreme Court has expressly held that, as regards private employers, no prerequisites to suit are to be added to those set out by Congress in the Civil Rights Act. ¹¹ In McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Court held that the absence of an Equal Employment Opportunity Commission finding of reasonable cause did not bar suit under the provision analogous to § 717(c) ¹² on a claim of racial discrimination brought by a private-sector employee:

Respondent satisfied the jurisdictional prerequisites to federal action (i) by filing timely charges of employment discrimination with the Commission and (ii) by receiving and acting upon the Commission's statutory notice of the right to sue, 42 U.S.C. §§ 2000e-5(a) and 2000e-5(e). The Act does not restrict a complainant's right to sue to those charges as to which the Commission has made findings of reasonable cause, and we will not engraft on the statute a requirement which may inhibit the review of claims of employment discrimination in the federal courts.

Id. at 798-99, 93 S.Ct. at 1822 (emphasis supplied). ¹³

We can see no reason for differentiating between federal- and private-sector employees by burdening federal employees with requirements in addition to the statutory prerequisites to suit. Such a result would be contrary to Congress's expressed intent in several ways. Most obviously, any additional jurisdictional prerequisites to suit would impede the "rooting out of every vestige of employment discrimination within federal (employment)," Hackley v. Roudebush, supra, 520 F.2d at 136.

In addition, the EEOA provisions for federal employee access to the courts were based, in part, on Congress's concern that, prior to 1972, federal employees did not have realistic access to the courts: "In many (employment discrimination) cases, the employee must overcome a U. S. Government defense of sovereign immunity or failure to exhaust administrative remedies with no certainty as to the steps required to exhaust such remedies." S.Rep.No.415, 92d Cong., 1st Sess. 16 (1971) (emphasis supplied).

Moreover, Congress was concerned with minimizing, not increasing, any disparity in the treatment of federal- and private-sector employees when it passed the EEOA. See, e. g., H.R.Rep.No.238, 92d Cong., 1st Sess. 23 (1971), U.S.Code Cong. & Admin.News 1972, pp. 2137, 2158: ". . . (T)here 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."

Finally, Congress mandated the expedition of Title VII suits. 42 U.S.C. § 2000e-5(f)(5) sets out that "(i)t shall be the duty of the (trial) judge . . . to assign the (discrimination) case for hearing at the earliest practicable date and to cause the case to be in every way expedited." Burdening federal employees with additional exhaustion requirements cannot be reconciled with this express Congressional mandate.

The District of Columbia Circuit reached this same conclusion in Grubbs v. Butz, 514 F.2d 1323 (D.C.Cir.1975), where it...