Ellis v. NAVAL AIR REWORK FACILITY, ALAMEDA, CAL.

• Decision Date: 03 November 1975
• Docket Number: C-73-2241 WHO,C-74-0764 WHO and C-74-1286 WHO.,C-74-0489 WHO,C-74-0028 WHO,C-74-0520 WHO,No. C-73-1794 WHO,C-73-1794 WHO
• Citation: 404 F. Supp. 377
• Court: U.S. District Court — Northern District of California
• Parties: Joseph L. ELLIS et al. v. NAVAL AIR REWORK FACILITY, ALAMEDA, CALIFORNIA, et al. Etta B. SAUNDERS, Individually and on behalf of others similarly situated v. John W. WARNER, in his capacity as Secretary of the Navy, et al. (two cases). Jadell BELL, Individually and on behalf of all others similarly situated v. John W. WARNER, in his capacity as Secretary of the Navy, et al. Gwendolyn DAWSON, Individually and on behalf of all others similarly situated v. NAVAL AIR STATION, ALAMEDA, CALIFORNIA, et al. Moses SAUNDERS and Willie Lewis, Individually and on behalf of all others similarly situated v. NAVAL AIR REWORK FACILITY, ALAMEDA, CALIFORNIA, et al. Manuel F. ALVARADO and Jose D. Terrazas, Individually and on behalf of all others similarly situated v. NAVAL AIR REWORK FACILITY, ALAMEDA, CALIFORNIA, et al.

404 F. Supp. 377

Joseph L. ELLIS et al. v. NAVAL AIR REWORK FACILITY, ALAMEDA, CALIFORNIA, et al.

Etta B. SAUNDERS, Individually and on behalf of others similarly situated v. John W. WARNER, in his capacity as Secretary of the Navy, et al. (two cases).

Jadell BELL, Individually and on behalf of all others similarly situated v. John W. WARNER, in his capacity as Secretary of the Navy, et al.

Gwendolyn DAWSON, Individually and on behalf of all others similarly situated v. NAVAL AIR STATION, ALAMEDA, CALIFORNIA, et al.

Moses SAUNDERS and Willie Lewis, Individually and on behalf of all others similarly situated v. NAVAL AIR REWORK FACILITY, ALAMEDA, CALIFORNIA, et al.

Manuel F. ALVARADO and Jose D. Terrazas, Individually and on behalf of all others similarly situated v. NAVAL AIR REWORK FACILITY, ALAMEDA, CALIFORNIA, et al.

Nos. C-73-1794 WHO, C-73-2241 WHO, C-74-0028 WHO, C-74-0489 WHO, C-74-0520 WHO, C-74-0764 WHO and C-74-1286 WHO.

United States District Court, N. D. California.

June 20, 1975.

On Motion for Reconsideration November 3, 1975.

COPYRIGHT MATERIAL OMITTED

Clifford C. Sweet, John H. Erickson, Thomas Schneider, Miriam Morse, Malcolm B. Hunter, Robert Ramsey, Jr., Roger A. Clay, Jr., Oakland, Cal., John George, Berkeley, Cal., for Joseph L. Ellis.

Lowell Johnston, William E. Hickman, San Francisco, Cal., Jack Greenberg, James M. Nabrit, III, Charles Stephen Ralston, Eric Schnapper, New York City, Howard Moore, Jr., Berkeley, Cal., for Etta B. Saunders.

William E. Hickman, William Bennett Turner, Lowell Johnston, San Francisco, Cal., Howard Moore, Jr., Berkeley, Cal., for Jadell Bell.

Clifford C. Sweet, John H. Erickson, Alice M. Beasley, Roger A. Clay, Jr., Thomas Schneider, Miriam Steinbock, Legal Aid Society of Alameda County, Oakland, Cal., for Gwendolyn Dawson, Moses Saunders and Manuel F. Alvarado.

James L. Browning, Jr., U.S. Atty., John F. Cooney, Jr., Asst. U.S. Atty., Civ. Div., San Francisco, Cal., for defendants.

MEMORANDUM OPINION AND ORDER

ORRICK, District Judge.

Plaintiffs in these seven related actions are Black and Mexican-American male and Black female civilian workers at the Naval Air Station in Alameda County, California. They allege that they have been discriminated against in employment on the basis of their race and sex in violation of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (42 U.S.C. § 2000e-16), 42 U.S. C. § 1981, the Due Process Clause of the Fifth Amendment, and Executive Order No. 11478, 3 C.F.R. § 207 (1974). These cases involve eleven individual plaintiffs,¹ raising approximately thirty separate claims of discrimination in firing and promotional decisions and job training assignments at the naval base.

The defendants have moved to dismiss all jurisdictional grounds other than Title VII of the Civil Rights Act of 1964 (hereinafter Title VII) (42 U.S.C. § 2000e-16). They have also moved for summary judgment based on the available administrative records in each of the actions. Plaintiffs, in turn, have filed cross motions for summary judgment in several of the cases and have asked for additional hearings in federal court in other instances.

Thus, the two major issues to be determined by the Court at this time are, first, whether there are jurisdictional grounds for complaints against the federal government alleging employment discrimination other than Title VII and, second, what is the scope of review to be given to the administrative proceedings.

For the reasons hereinafter set forth, I dismiss all jurisdictional grounds in all seven of the cases other than Title VII. I deny all of the defendants' motions for summary judgment and all of the plaintiffs' cross motions. I grant the eleven plaintiffs hearings de novo in the district court on the discrimination claims that they raised, or attempted to raise, at the administrative level.²

I. JURISDICTION

It is clear that the passage of Title VII, which provides a specific statutory remedy for discrimination in employment, did not preempt the more general statutory grounds for bringing discrimination complaints. Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L. Ed.2d 290 (1974). It is also clear that in actions brought by employees against private employers, Title VII and 42 U. S.C. § 1981 are independent and supplemental grounds for jurisdiction. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). However, the defendants in these seven cases are federal employers. Moreover, because the plaintiffs are suing the federal government, they must overcome the bar of sovereign immunity. Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). While Title VII creates an explicit waiver of sovereign immunity and permits federal employees to sue in federal court (42 U.S.C. § 2000e-16(c)), 42 U.S.C. § 1981 and the Fifth Amendment do not contain such waivers. Plaintiffs must, therefore, rely on the ultra vires exception to sovereign immunity to maintain jurisdiction under 42 U.S.C. § 1981 and the Fifth Amendment. Several courts have recognized that federal officers who discriminate in employment practices are acting outside the scope of their statutory authority and are subject to the ultra vires exception (Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974); Petterway v. Veterans Administration Hospital, 495 F.2d 1223 (5th Cir. 1974). The type of relief available, however, in cases brought under the ultra vires exception has been limited to mandamus relief of reinstatements and/or promotion. Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972); Penn v. Schlesinger, 490 F.2d 700 (5th Cir. 1973).

Mandamus is an extraordinary judicial remedy that will only issue when there is (1) a clear right in the plaintiff to the relief sought, (2) a clear duty on the part of the defendant to do the act in question, and (3) no other adequate remedy available. Carter v. Seaman, 411 F.2d 767, 773 (5th Cir. 1969).

Plaintiffs in these actions do have an adequate remedy in Title VII, and mandamus is, therefore, inappropriate. Under Title VII plaintiffs may seek reinstatement, promotion, back pay, and injunctive relief for redress of the discrimination complaints they have raised or attempted to raise administratively. If plaintiffs are precluded from bringing certain claims under Title VII because they have failed to exhaust their available administrative remedies, they would also be precluded from raising these claims pursuant to 42 U.S.C. § 1981 or the Fifth Amendment. Bowers v. Campbell, supra. Plaintiffs cannot circumvent the exhaustion requirements by alleging additional jurisdictional grounds. Accordingly, all jurisdictional grounds other than Title VII are dismissed. McLaughlin v. Callaway, 382 F. Supp. 885 (S.D.Ala.1974).

II. SCOPE OF REVIEW

Ten of the eleven plaintiffs' claims were investigated by the employees' own agency at the naval base (5 C.F.R. §§ 713.213-713.218). Six of the plaintiffs also had more formal "quasi-judicial" hearings before the Civil Service Commission ("CSC") (5 C.F.R. § 713.231). Bowers v. Campbell, supra. The defendants contend that the records produced by these administrative bodies adequately develop the discrimination claims, that any deficits in the records are due to plaintiffs' own failure to make timely requests for additional information or witnesses, and that the Court is, therefore, limited to reviewing the administrative records and determining whether "an absence of discrimination is affirmatively established by the clear weight of the evidence". Hackley v. Johnson, 360 F.Supp. 1247, 1252 (D.D.C.1973); Chandler v. Johnson, 515 F.2d 251 (9th Cir. 1975); Salone v. U. S., 511 F.2d 902 (10th Cir. 1975). Plaintiffs, on the other hand, contend the available administrative records have serious deficiencies that can only be remedied through judicial discovery. They contend that at the least they are entitled to supplement the administrative record (Chandler v. Johnson, supra), and that the more appropriate relief would be a hearing de novo in district court. Sperling v. United States, 515 F.2d 465 (3d Cir. 1975).

A. The District Court Decisions

Federal employees were expressly excluded from the coverage of Title VII as it was initially enacted. 42 U.S.C. § 2000e(a) and (c). In 1972, Title VII was amended by the Equal Opportunity Employment Act of 1972 (42 U.S.C. § 2000e-16), and federal employees were brought within the ambit of the Act. Since that time, the scope of judicial review in federal employee discrimination cases has been a much litigated issue. Several courts have reasoned that since private employees who bring discrimination suits pursuant to Title VII are entitled to hearings de novo in federal court (Alexander v. Gardner-Denver Co., supra; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)), federal employees who bring discrimination actions under the same statute are also entitled to de novo hearings (e. g. Reynolds v. Wise, 375 F.Supp. 145 (N.D.Tex.1974); Henderson v. Defense Contract Admin. Service Region, 370 F.Supp. 180 (S.D.N.Y. 1973).

Other district courts have taken a contrary position holding that federal employees, suing under Title VII, are not entitled as a matter of right to hearings de novo in federal courts.³ e. g. Hackley v. Johnson, supra; Carreathers v. Alexander, No. C-5082 (D.Colo. Dec. 11, 1974). These courts, after declaring the legislative history of the 1972 Amendments to Title VII to be murky, compare the legislative scheme for private and public employee discrimination suits. They reason that private employees who are entitled to hearings de novo in federal court may only process their grievances administratively through the informal conciliatory and investigative efforts of the Equal Employment Opportunity Commission ("EEOC"). Federal employees, on the other hand, may have their claims investigated by the...