Coles v. Penny

• Decision Date: 23 February 1976
• Docket Number: No. 74--1742,74--1742
• Citation: 174 U.S.App.D.C. 277,531 F.2d 609
• Parties: 12 Fair Empl.Prac.Cas. 1785, 11 Empl. Prac. Dec. P 10,714, 174 U.S.App.D.C. 277 Melvin W. COLES, Appellant, v. General Howard W. PENNY, Director, Defense Mapping Agency, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 609

531 F.2d 609

12 Fair Empl.Prac.Cas. 1785,

11 Empl. Prac. Dec. P 10,714, 174 U.S.App.D.C. 277

Melvin W. COLES, Appellant, v. General Howard W. PENNY, Director, Defense Mapping Agency, et al.

No. 74--1742.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 11, 1975.

Decided Feb. 23, 1976.

Lawrence J. Speiser, Washington, D.C., for appellant.

Michael I. Gewirtz, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry, Stuart M. Gerson, Derek I. Meier, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

This case presents the question of whether notice to a federal employee that his charge of employment discrimination has been dismissed and that the agency decision is final suffices to start the running of the thirty-day period in which a civil action may be brought, when the notice fails to inform the employee of his right under Title VII to file such an action. We answer this question in the negative.

I

Appellant Melvin Coles, a black cartographer with the Defense Mapping Agency, ¹ has on three occasions within the past fourteen years filed complaints alleging that the Agency failed to promote him due to racial discrimination. The second of these complaints was filed in 1970, processed through regular administrative channels, and ultimately presented to the Board of Appeals and Review of the United States Civil Service Commission. ² On May 19, 1972, the Board held that appellant's complaint was not supported by the evidence, App. at 39--40, and informed him that '(t)he Civil Service Regulations provide that a decision of the Board is final and that there is no further right of administrative appeal.' App. at 40. No judicial review was sought.

Appellant's third discrimination complaint, filed on September 17, 1972, ³ contained an allegation of a pattern of racial discrimination at the Agency that was substantially identical to the one alleged in the 1970 complaint, as well as a new claim that the failure during the summer of 1972 to consider him for a promotion to a GS--14 position was discriminatory. ⁴ On July 18, 1973 the Board of Appeals and Review informed appellant that this complaint was also without merit and that 'Civil Service Commission Regulations provide that the Board's decision is final and that there is no further right of administrative appeal. However, if you are not satisfied with this decision, you are authorized by section 717(c) of the Civil Rights Act, as amended, to file a civil action in an appropriate U.S. District Court within thirty (30) calendar days of your receipt of this decision.' App. at 46.

The instant action was filed within that thirty-day period on August 17, 1973, by Mr. Coles pro se; counsel later entered an appearance. Appellee moved for dismissal or in the alternative for summary judgment, and the latter was granted. With respect to the failure to consider appellant during the summer of 1972 for promotion to a GS--14 position, the District Court found that the Agency had no legal duty to do so. As for the general allegation of discrimination, the court found it to be untimely since it had originally been raised in the 1970 complaint and appellant had failed to file an action within thirty days after receiving notice of the Review Board's final action respecting the 1970 complaint. The trial court nonetheless proceeded to the merits, and reviewing the administrative record under an arbitrary and capricious standard, found nothing to warrant reversal. The instant appeal is from that grant of summary judgment.

II

Until 1972, Title VII of the 1964 Civil Rights Act did not extend to federal employees. That lacuna was bridged by the Equal Employment Opportunity Act of 1972, which amended Title VII to grant federal employees the same rights and remedies as employees in the private sector. Hackley v. Roudebush, 171 U.S.App.D.C. 376, 520 F.2d 108, 126--35, 142--48 (1975). Subsection 717(a), 42 U.S.C. § 2000e--16(a) (Supp. II 1972), specifies that '(a)ll personnel actions affecting employees or applicants for employment . . . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin'; subsection 717(b), 42 U.S.C. § 2000e--16(b) (Supp. II 1972), authorizes the Civil Service Commission to enforce subsection 717(a) through provision of appropriate remedies and issuance of necessary rules and regulations. Subsection 717(c), 42 U.S.C. § 2000e--16(c) (Supp. II 1972), the pivotal section in determining whether any part of appellant's action was time-barred, provides that:

Within thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Civil Service Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Civil Service Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e--5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.

The effective date of the 1972 Act was March 24, 1972, at which time appellant's 1970 complaint was still administratively pending.

In Hackley, decided after the District Court's disposition of this case, we held that the civil action provided for in subsection 717(c) is to be a de novo one rather than the type of administrative review conducted by the District Court in this case. As regards the claim first raised by appellant in his 1972 complaint that he was not considered for a GS--14 position, Hackley requires that we reverse and remand for de novo consideration by the District Court. ⁵

If the claim of a general pattern of discrimination, contained in both the 1970 and 1972 complaints, was not time-barred, then a reversal and remand for de novo consideration of this claim is also appropriate; otherwise, affirmance as to this claim is plainly in order. This is the dispositive issue before us.

III

Under Title VII of the Civil Rights Act as originally passed in 1964, claims of employment discrimination in the private sector were to be referred in the first instance to state commissions on employment discrimination (if in existence) and then to the Equal Employment Opportunity Commission (EEOC). Subsections 706(a--d), 42 U.S.C. §§ 2000e--5(a--d) (1970). If the EEOC failed to achieve voluntary compliance within a specified period, it was to 'so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge . . . by the person claiming to be aggrieved . . ..' Subsection 706(e), 42 U.S.C. § 2000e--5(e) (1970). On July 1, 1965--one year after the effective date of Title VII--the EEOC exercised its authority under subsection 713(a), 42 U.S.C. § 2000e--12(a) (1970), to issue procedural regulations to carry out the provisions of Title VII. 30 Fed.Reg. 8407 (1965). Of interest to us is the provision codified as 29 C.F.R. § 1601.25(a)(3) (1975), which requires that the notice to the aggrieved party required by the Act must include '(a)dvice concerning his or her rights to proceed in court under Section 706(f)(1) of Title VII.'

The extension of coverage to federal employees in 1972 expressly used the civil action for private employees as its model. ⁶ see subsection 717(c), 42 U.S.C. § 2000e--16(c) (Supp. II 1972), quoted at pp. --- - --- of 174 U.S.App.D.C., pp. 611--612 of 531 F.2d supra; subsection 717(d), 42 U.S.C. § 2000e--16(d) (Supp. II 1972) ('The provisions of section 2000e--5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder.'); Hackley v. Roudebush, supra, at 126--35, 142--48. A federal employee had to exhaust administrative remedies before bringing a civil action, ⁷ which under subsection 717(c) must be filed within thirty days of receipt of notice of final agency action. On October 21, 1972--seven months after the effective date of the 1972 amendments--the Civil Service Commission (CSC), acting under its rule-making authority in subsection 717(b), ⁸ see p. --- of 174 U.S.App.D.C., pp. 611--612 of 531 F.2d supra, promulgated regulations expressly requiring that notice of final agency action advise the complainant of his right to bring a civil action and the time limits applicable thereto. 5 C.F.R. §§ 713.221(d), .234, .282 (1975).

The Government's argument that appellant is time-barred as to his claim of a general pattern of discrimination in the Agency is quite simple. This claim was first raised in appellant's 1970 complaint, and was found to be without merit by the Board of Appeals and Review on May 19, 1972--nearly two months after the effective date of the 1972 amendments. Plaintiff failed to file a civil action within thirty days of the receipt of notice advising him that the agency action was final. Whether viewed as a jurisdictional provision, ⁹ a waiver of sovereign immunity, ¹⁰ or an express limitation on a right created by Congress, ¹¹ the thirty-day limit must be strictly construed. ¹² Once having failed to comply with that limitation, plaintiff may not circumvent it by filing another complaint containing...