Guilday v. United States Department of Justice

• Decision Date: 22 October 1974
• Docket Number: Civ. A. No. 4578.
• Citation: 385 F. Supp. 1096
• Parties: Peter W. GUILDAY, Plaintiff, v. The UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants.
• Court: U.S. District Court — District of Delaware

385 F. Supp. 1096

Peter W. GUILDAY, Plaintiff, v. The UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants.

Civ. A. No. 4578.

United States District Court, D. Delaware.

October 22, 1974.

Robert F. Stewart, Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for plaintiff.

Ralph F. Keil, U.S. Atty., and Alan J. Hoffman, Asst. U.S. Atty., for defendants.

MEMORANDUM OPINION

CALEB M. WRIGHT, Senior District Judge.

The purpose of this opinion is to delineate the appropriate standard for review of administrative action on federal employee discrimination complaints. Plaintiff is a criminal investigator employed by the Immigration and Naturalization Service of the United States Department of Justice. He has brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103, to redress alleged discrimination in promotion based on race and creed¹ and reprisals following his complaints of discrimination. Following this opinion, the parties will brief the application of the standard of review here articulated to the administrative record. A fuller account of the facts underlying plaintiff's complaint will await this Court's decision on the merits.

Trial De Novo

The Equal Employment Opportunity Act of 1972 extended protections against employment discrimination to federal employees similar to those protections already available to employees in the private sector under Title VII of the 1964 Civil Rights Act. Under the scheme of the Equal Employment Opportunity Act of 1972, an aggrieved federal employee must initially file his complaint of discrimination with the employing "department, agency, or unit." After receiving notice of final action on his complaint by his department, agency, or unit, or, should he pursue an administrative appeal, by the Civil Service Commission, the employee who is "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. . . ." 42 U.S.C. § 2000e-16(c). Plaintiff contends that having pursued his claim unsuccessfully before the Department of Justice and the Civil Service Commission, he is now entitled by statute to a trial de novo in this Court.

The text of the Equal Employment Opportunity Act is silent on the issue of whether a trial de novo is automatically required in cases of federal employee complaints. However, § 2000e-5, the part of the 1964 Civil Rights Act to which § 2000e-16(c) refers, has been held to create for private employees the right to a trial de novo following proceedings before the Equal Employment Opportunity Commission. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 799, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Plaintiff argues that since federal employees "may file a civil action as provided in section 2000e-5" and since that section has been held to authorize a trial de novo, federal employees are entitled to a trial de novo. On the other hand, § 2000e-16(d) provides: "The provisions of section 2000e-5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder emphasis added." This language seems to allow for some judicial discretion in applying the procedures of court review in private employee cases to cases of federal employees.

If the text of the statute is ambiguous on the issue of trial de novo, the legislative history also admits of opposite interpretations. On the one hand certain legislators plainly anticipated that aggrieved federal employees would be entitled to a de novo trial. For example, as the court noted in Henderson v. Defense Contract Administration Services, 370 F.Supp. 180 (S.D.N.Y.1973):

". . . Senator Cranston, one of the cosponsors of the Act, was originally reported to have stated that there was no right to a de novo trial in this type of suit. Subsequently, after this statement was brought to his attention, he corrected the record and categorically asserted: `As with other cases brought under title VII of the Civil Rights Act of 1964, Federal district court review would not be based on the agency and/or CSC record and would be a trial de novo.'" 370 F.Supp. at 184 footnotes omitted.²

On the other hand, certain language in the legislative history envisions only "review of the administrative proceeding record."³ The fact that the Civil Service Commission was granted substantially greater remedial powers than those held by the Equal Employment Opportunity Commission⁴ tends to indicate that de novo litigation in federal employee cases is less appropriate than in private sector employee cases. However, the fact that a federal employee can, following an adverse decision by his employing agency, file an action in federal district court directly and bypass the Civil Service Commission, § 2000e-16(c), carries an opposite implication.

The leading case on the issue of trial de novo in federal employee discrimination cases is Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C.1973). There, Judge Gesell reached the conclusion, based on the legislative history of the 1972 Act, "common sense", experience, and precedent, that no automatic trial de novo is required:

"The trial de novo is not required in all cases. The District Court is required by the Act to examine the administrative record with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence on the record, no new trial is required. If this exacting standard is not met, the Court shall, in its discretion, as appropriate, remand, take testimony to supplement the administrative record, or grant the plaintiff relief on the administrative record." 360 F.Supp. at 1252.

Most courts that have considered this issue have adopted the Hackley position.⁵ A minority of courts has concluded that employees of the federal government are entitled to a trial de novo just as employees in the private sector are so entitled.⁶ This view has received scholarly support.⁷

On balance, this Court determines that the Hackley position is the better view. In the absence of clear guidelines from Congress, it is appropriate for the courts to consider the interests of judicial economy and fairness before requiring an automatic trial de novo. To the extent that a trial de novo would require pretrial discovery and trial proof of factual background already developed in administrative proceedings, it would be unjustifiably duplicative. Moreover, in light of the fact that procedural and substantive rights of a grievant before the Civil Service Commission are significantly greater than correlative rights before the Equal Employment Opportunity Commission, it is not unfair that the rights of federal and private employees to a trial de novo are not symmetrical. See Pointer v. Sampson, supra, 62 F.R.D. at 693.

Finally, this Court notes that the Hackley result articulated in the passage quoted above is procedurally quite similar to the summary judgment practice that routinely takes place in these cases, even if a trial de novo is thought to be required. As a matter of course, the Government — and often the plaintiff — moves for summary judgment based on the administrative record.⁸ The court must decide, after reviewing the record, whether there is a genuine issue as to any material fact and whether the movant is entitled to a judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure. Based on this review, the Court either remands for further administrative proceedings, allows the case to go to trial — with the administrative record in evidence —, or grants or denies relief on the administrative record. Because of the inevitability of a Government motion for summary judgment in these cases, what is critical is the kind of scrutiny the court applies to the administrative record, not the existence, in the abstract, of a right to a trial de novo.

Standard of Review

Plaintiff urges that the administrative finding that there has been no discrimination should be sustained on judicial review only if it is "affirmatively established by the clear weight of the evidence in the record." Hackley v. Johnson, supra, 360 F.Supp. at 1252. The Government, on the other hand, argues that the appropriate standard of review is the one normally applied to federal employee personnel actions— whether the administrative decision is supported by "substantial evidence" in the record.

The constitutional and moral imperative of eradicating all vestiges of discrimination based on race and creed from public employment has been recognized for many years.⁹ In Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), the Supreme Court found that the due process clause of the Fifth Amendment prohibits the federal government from denying to any citizen equal protection of law. See also, Gibson v. Mississippi, 162 U.S. 565, 591-592, 16 S.Ct. 904, 40 L.Ed. 1075 (1896). In 1966, Congress delineated this responsibility with respect to federal employment more precisely: "It is the policy of the United States to insure equal employment opportunities for employees without discrimination because of race, color, religion, sex, or national origin. The President shall use his existing authority to carry out this policy." 5 U. S.C. § 7151. Pursuant to this mandate, President Johnson issued Executive Order 11246 dealing with discrimination on the basis of race, religion, or national origin, and Executive Order 11375, dealing with sex discrimination. Thereafter, President Nixon promulgated Executive Order 11478 which encompassed both of the prior orders, and required affirmative programs, under the supervision of the Civil Service Commission, to insure equal employment opportunity in each executive department or agency. Convinced that those procedures were inadequate, Congress enacted the federal employment provisions of the...