Ettinger v. Johnson

• Decision Date: 27 May 1977
• Docket Number: No. 76-1784,76-1784
• Citation: 556 F.2d 692
• Parties: 16 Fair Empl.Prac.Cas. 223, 14 Empl. Prac. Dec. P 7588 Linda ETTINGER, on her own behalf and on behalf of all others similarly situated, Appellant, v. Donald E. JOHNSON, Director, Veterans Administration, Washington, D. C. and S. W. Melidosian, Director, Veterans Administration Center, Philadelphia, Pa., Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 692

556 F.2d 692

16 Fair Empl.Prac.Cas. 223, 14 Empl. Prac.

Dec. P 7588

Linda ETTINGER, on her own behalf and on behalf of all others similarly situated, Appellant, v. Donald E. JOHNSON, Director, Veterans Administration Washington, D. C. and S. W. Melidosian, Director Veterans Administration Center Philadelphia, Pa., Appellees.

No. 76-1784.

United States Court of Appeals Third Circuit.

Argued Feb. 15, 1977.

Decided May 27, 1977.

Craig Currie, Bolger & Picker, Philadelphia, Pa., for appellant.

Alfred A. Gollatz, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Paul E. Holl, Asst. U. S. Atty., Philadelphia, Pa., for appellees.

Before SEITZ, Chief Judge, VAN DUSEN and WEIS, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal is from an order of the district court granting summary judgment against the plaintiff in an action brought against the Veterans Administration (VA) under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq. as amended by Section 717 of the Equal Employment Opportunity Act of 1972, (the 1972 Act) 42 U.S.C. § 2000e-16. ¹ The summary judgment was predicated upon findings by the trial judge that the plaintiff had failed to timely exhaust administrative remedies and that she did not meet the provisions of 5 C.F.R. § 713.214(a)(4), ² which permits waiver of the general requirement that a complaint be made within thirty days ³ of an alleged discriminatory incident if certain conditions are met. Because the district court did not properly apply F.R.Civ.P. 56 in granting the motion for summary judgment, ⁴ we reverse and remand.

I. HISTORY OF THE CASE

A. The Background of the Case.

This is the second time that this case has been before this Court. ⁵ In Ettinger v. Johnson, 518 F.2d 648 (3d Cir. 1975) (Ettinger I), this Court reversed the district court's determination that the plaintiff was not entitled to a trial de novo on the question of discrimination. ⁶ In its holding in Ettinger I, the district court judge granted summary judgment for the defendant on the ground that the VA's dismissal of the plaintiff's complaint for untimeliness was supported "by not only substantial, but also uncontroverted facts" in the administrative record. We disagreed with the denial of a de novo hearing, and "(b)ecause the record (then) before us . . . (did) not contain sufficient facts relevant to deciding either aspect of this exhaustion issue, we (remanded) the case to the district court for a hearing de novo on the question of exhaustion." 518 F.2d at 652. It is evident from the language at pages 652-653 of 518 F.2d that the record, as it then existed, was insufficient to ascertain whether or not the December 6, 1972, allegation was an effective claim at the time the formal complaint was filed on December 18, 1972, and whether or not the plaintiff had been apprised of the timeliness provisions of 5 C.F.R. § 713.214(a)(1)(i) so that the waiver provisions of 5 C.F.R. § 713.214(a)(4) would be inapplicable. ⁷

In accordance with our remand, depositions were taken from Ettinger and the Equal Employment Opportunity Counselor (EEO Counselor), who had investigated her allegations when originally made and who subsequently forwarded a report of his findings to the VA after she had filed her formal complaint on December 18th. The augmented record also contained a 1975 affidavit of the EEO Counselor, which is essentially a shorter paraphrase of his 1973 report and contains internal contradictions concerning the vitality of the December 6th claim similar to those discussed in note 7, above. ^7a Also included was the affidavit of the Chief of Personnel Division of the Veterans Administration Center which indicated that during her tenure plaintiff would have been exposed to information concerning the procedures to be followed in processing Title VII complaints; however, this affidavit specifically indicates that the bulletins distributed to the employees made reference to timeliness requirements only in the sense that "more detailed procedures for processing discrimination complaints were contained" in a VA manual, which, in turn, "contained the time limits within which a complaint must be brought to the attention of an EEO Counselor." ⁸

Ettinger in her deposition and in an affidavit explicitly denied ever receiving any information concerning the thirty-day filing requirement of 5 C.F.R. § 713.214(a)(1)(i) prior to the time of her initial complaint to the EEO Counselor on or about November 17, 1972, or at any time before December 21, 1972.

Finally, it is Ettinger's contention that she brought to the attention of the Counselor at least one other incident of discrimination which occurred within thirty days of her first visit to him but which was not reflected in his January 17th report. She stated in her deposition that one of the ways in which she was discriminated against was that, pursuant to the Merit Promotion Plan, she had been assigned to a "highly qualified status" promotion list as of April 30, 1972, and that she had not been promoted from the list during its six-month effectiveness period. Thus, Ettinger reasons that because she was not promoted during the six-month period and was decertified or removed from "highly qualified status" as of October 30, 1972, the date of the list's termination, she was discriminated against within thirty days of her initial November 17, 1972, complaint to the EEO Counselor. However, the record indicates that the last "personnel actions" from this list occurred April 30, 1972. See paragraph 3, VA letter dated January 23, 1973.

B. The District Court's Opinion.

Following the depositions of Ettinger and the EEO Counselor, both parties moved for summary judgment on the basis of the augmented record as discussed above. On the basis of this record, the district court judge once again granted summary judgment against the plaintiff holding, first, that she had not timely exhausted her administrative remedies and, second, that she was not entitled to a waiver of the timeliness requirements under 5 C.F.R. § 713.214(a) (4).

Ettinger's contentions, discussed above, concerning her lack of promotion from the "highly qualified status" promotion list, were not discussed in the district court's opinion. The record indicates that this contention was before the district court. See e. g., Plaintiff's Supplemental Motion for Partial Summary Judgment (Doc. 41) (E.D.Pa. Civ. No. 73-702) filed March 15, 1976.

In reaching its conclusion on the exhaustion issue, the trial court found that the plaintiff had abandoned the December 6th allegation by the time she filed her formal complaint on December 18, 1972. This holding was based on a review of the formal complaint which contained no explicit description of the factual discrimination underlying the December 6th report to the EEO Counselor and the 1975 affidavit of the Counselor along with those portions of the Counselor's formal report of January 17, 1973, which suggested that the plaintiff's formal complaint had changed the focus of the allegation from acts directed against the plaintiff personally to discrimination directed against females generally. The district court's opinion does not deal with other portions of the January 17th report which suggest that as of the date on which she filed her formal complaint the December 6th allegation was still a live controversy. The record, including Ettinger's deposition, is ambiguous and is as supportive of the inference that she had not abandoned the December 6th allegation as the opposite.

Despite direct statements by the plaintiff in her deposition and affidavit that she had no notice of the thirty-day limitation on filing a complaint and despite the lack of evidence in the record that would support solely a finding that the plaintiff knew of these requirements prior to December 21, 1972, the trial judge held that the plaintiff could not be believed. His conclusion was based upon the following: (1) the plaintiff's general background and intelligence, (2) her educational level, (3) the fact that shortly before she made her original complaint to the EEO Counselor in November, 1972, she had consulted with attorneys and others associated with pro bono legal services in discrimination cases, (4) "the overly protective attitude of her counsel illustrated in pages 11 to 22 of the plaintiff's deposition, and reflected throughout the entire deposition," (5) unexplained pauses and unresponsive answers in the plaintiff's deposition, and (6) the above-described affidavit of the Chief of the Personnel Division (page 5 above). In addition to the foregoing, the court, in part, also seemed to predicate its conclusion on this issue on its view that she or her attorney should have notified the VA of her lack of notice following her receipt of the VA's letter ⁹ rejecting her claim for lack of timeliness and before suit was brought in the district court. This letter contains no reference to the December 6th allegation.

II. APPLICABLE LAW

The relevant legal principles under Rule 56 are well settled:

"The law is clear that one who moves for a summary judgment has the burden of demonstrating that there is no genuine issue of fact."

Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 190 F.2d 817, 824 (3d Cir. 1951).

"Upon a motion for a summary judgment it is no part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. . . . All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment."

Toebelman v. Missouri-Kansas Pipe Line Co., 130 F.2d 1016, 1018 (3d Cir. 1942).

"When at the hearing on a motion for summary judgment there is contradictory evidence, or the movant's evidence is impeached, an issue of credibility is present,...