Goza v. Bolger, Civ. A. No. C81-2255A.

• Decision Date: 11 May 1982
• Docket Number: Civ. A. No. C81-2255A.
• Citation: 538 F. Supp. 1012
• Parties: Harold B. GOZA, Plaintiff, v. William F. BOLGER, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

538 F. Supp. 1012

Harold B. GOZA, Plaintiff, v. William F. BOLGER, et al., Defendants.

Civ. A. No. C81-2255A.

United States District Court, N. D. Georgia, Atlanta Division.

May 11, 1982.

David R. Sweat, Nelson & Sweat, Athens, Ga., for plaintiff.

Jere W. Morehead, Asst. U. S. Atty., Atlanta, Ga., for defendants.

ORDER

SHOOB, District Judge.

Plaintiff brought this action on December 3, 1981, pursuant to 42 U.S.C. § 2000e-16 (Title VII of the 1964 Civil Rights Act) (the Act), 29 U.S.C. § 633a (Age Discrimination in Employment Act) and 29 U.S.C. § 216 (Fair Labor Standards Act), alleging that he was denied a promotion in the United States Postal Service because of his race and age. On February 22, 1982, plaintiff moved for a temporary restraining order (TRO) to restrain defendants from discharging him from his position as a Postal Police Officer. On that date, the Court orally denied plaintiff's motion for a TRO because he had failed to show a substantial likelihood of success on the merits; the Court also found that plaintiff had an adequate remedy at law. See Order of February 25, 1982.

Presently before the Court is plaintiff's motion for leave to amend his complaint. The proposed amendment alleges that plaintiff was discharged from his position as a Postal Police Officer on February 22, 1982 in retaliation for filing the employment discrimination complaint which gave rise to this action. Defendants assert that leave to amend should be denied because this Court lacks subject matter jurisdiction over plaintiff's claim of retaliation since he has not exhausted his administrative remedies on this claim.

The timely filing of an administrative complaint and exhaustion of administrative remedies are generally prerequisites to bringing suit under Title VII. Brown v. General Services Administration, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976); Ray v. Freeman, 626 F.2d 439, 442 (5th Cir. 1980).¹ However, contrary to defendants' argument, these procedural requirements do not involve the Court's subject matter jurisdiction. Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 589 (5th Cir. 1981) (en banc); Citicorp Person-To-Person Financial Corp. v. Brazell, 658 F.2d 232, 234 (4th Cir. 1981).

In the recent case of Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir. 1981) the court held that

it is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a retaliation claim growing out of an earlier charge; the district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before the court.²

In this case, the Court must decide an issue of first impression, whether the Gupta rule applies to a Title VII action brought by a Federal employee. Accordingly, it is necessary to review Gupta and related cases in some detail.

In Gupta, plaintiff filed an administrative complaint with the Equal Employment Opportunity Commission (EEOC) on July 9, 1975 alleging discrimination in job assignments and pay rates because of his national origin and religion. Id. at 412-13. The EEOC issued its right to sue letter in February of 1976. Id. at 413. During that month plaintiff filed a second complaint with the EEOC asserting various acts of retaliation by defendant because of the filing of his first EEOC complaint. Id. In March of 1976 plaintiff filed his action in the district court. Id. Subsequently, in May of 1976 the EEOC issued its right to sue letter on plaintiff's second complaint. Id. After the filing of his action, plaintiff's teaching contract with defendant was not renewed for the following academic year. Id. Although plaintiff did not file an EEOC complaint regarding his dismissal, plaintiff's claim of retaliatory discharge was litigated before the district court. Id.

The Court of Appeals in Gupta noted that several district courts in the Fifth Circuit had interpreted Pettway v. American Cast Iron Pipe Company, 411 F.2d 998 (5th Cir.), rehearing and rehearing en banc denied, 415 F.2d 1376 (5th Cir. 1969) (Pettway II) as eliminating the exhaustion requirement for retaliation claims; these courts found ancillary jurisdiction over such claims. Id. See e.g., Pouncy v. Prudential Insurance Company of America, 499 F.Supp. 427, 435 (S.D. Tex.1980); Thomas v. Southdown Sugars, Inc., 484 F.Supp. 1317, 1320 (E.D.La.1980); Held v. Missouri Pacific Railroad Company, 373 F.Supp. 996, 1000-02 (S.D.Tex.1974).

The court in Gupta offered several reasons for its decision to establish an exception to the exhaustion of remedies requirement. First, it found "strong practical reasons and policy justifications for its conclusion." 654 F.2d at 414. It reasoned that since retaliation claims by their nature arise out of an EEOC complaint, to require a second administrative filing "would serve no purpose except to create additional procedural technicalities when a single filing would comply with the intent of Title VII." Id. The court also felt "reluctant to erect a needless procedural barrier to the private claimant under Title VII, especially since the EEOC relies largely on private actions to achieve the goals of the Act." Id. Additionally, the availability of ancillary jurisdiction over retaliation claims will deter employers from trying to discourage employees from exercising their rights under the Act. Id.³

In this case, plaintiff filed an Equal Employment Opportunity (EEO) complaint with the Postal Service on December 29, 1979, alleging discrimination against him in a denial of a promotion to Security Supervisor because of his race. On July 15, 1981, the EEOC held a hearing on plaintiff's complaint. Plaintiff filed this action on December 3, 1981, according to plaintiff, within thirty days of receipt of a notice of final decision from the EEOC on his charges of discrimination. Plaintiff's Complaint at ¶ 13.

On February 1, 1982, the Postal Service notified plaintiff of his forthcoming discharge, effective on February 22, 1982, from his position as Postal Police Officer. On that date, plaintiff filed an "Expedited Reprisal Complaint" with the Postal Service, pursuant to 29 C.F.R. § 1613.262(b).⁴ On February 12, 1982, the Postal Service answered plaintiff's complaint finding no reprisal with respect to his proposed removal from the Postal Service. On February 22, 1982, plaintiff was discharged from the Postal Service and on April 15, 1982, he moved to amend his complaint in this Court to assert his retaliatory discharge claim.

Defendants contend that the recent Fifth Circuit decision in Porter v. Adams, 639 F.2d 273, 276 (5th Cir. 1981) bars plaintiff from asserting his reprisal claim in this action. In Porter the court held that the "filing of a charge of reprisal under 5 C.F.R. §§ 713.201-.283 (1978) does not provide a route to judicial review."⁵ Id. at 277. For the reasons discussed below, the Court concludes that Gutpa, as opposed to Porter, controls this action. Therefore, plaintiff may assert his retaliation claim without exhaustion of administrative remedies.

In Porter, plaintiff filed her first EEO complaint with the Coast Guard in June of 1977, alleging that her supervisor had discriminated against her because of her race. Id. at 274. In September of 1977 plaintiff filed a charge of reprisal with the Coast Guard, because of actions taken by her supervisor allegedly in response to the filing of her EEO complaint. Id. Plaintiff withdrew her EEO complaint, filed in June of 1977, after administrative proceedings resulted in a settlement. Id. at 275. Nevertheless, the Coast Guard's Office of Civil Rights investigated her reprisal charge and determined that it had merit and recommended remedial action. Id. In June of 1978 and July of 1979, plaintiff filed her second and third EEO complaints, charging new instances of discrimination. Id.

In November of 1978 plaintiff in Porter filed her civil action. Therein, she raised substantially all her allegations of discrimination contained in the September of 1977 charge of reprisal and in her second and third EEO complaints. At the time plaintiff's action came to trial, and apparently even up to the time of the Court of Appeals' decision, plaintiff's second and third EEO complaints were "running the course of administrative proceedings." Id. After a trial before a magistrate, the district court dismissed plaintiff's complaint. Id. The trial court held that plaintiff had failed to exhaust her administrative remedies insofar as the action involved claims that were the subject of her then pending second and third EEO complaints. Id. Those claims which were included in plaintiff's first EEO complaint were barred by the administrative settlement. Id. The district court remanded plaintiff's remaining claim, the reprisal charge, to the agency for consideration along with her two pending EEO complaints. Id.

The trial court in Porter felt that plaintiff's "claims were all inextricably intertwined and postponement of the reprisal claim was preferable to piecemeal judicial review." Id. Against this background, plaintiff argued unsuccessfully on appeal that the district court erred in dismissing her September of 1977 charge of reprisal. Id. at 276-77. As already noted, the Court of Appeals ruled that this charge of reprisal was not judicially reviewable. Id. at 277. Therefore, it affirmed the district court's dismissal of plaintiff's complaint.

From this review it becomes clear that Porter does not control this action. In Porter the only claims before the trial court were those included in plaintiff's charge of reprisal. Thus, undoubtedly the trial court could not assert ancillary jurisdiction to hear the reprisal charge if it could not hear plaintiff's other discrimination charges. Here, conversely, the Court does have jurisdiction over plaintiff EEO's complaint; thus, it can exercise ancillary jurisdiction over his charge of retaliatory discharge. However, the analysis does not...