James v. Rumsfeld, 76-2032

• Decision Date: 01 August 1978
• Docket Number: No. 76-2032,76-2032
• Citation: James v. Rumsfeld, 580 F.2d 224 (6th Cir. 1978)
• Parties: 17 Fair Empl.Prac.Cas. 1398, 17 Empl. Prac. Dec. P 8505 Dorothy JAMES et al., Plaintiffs-Appellants, v. Donald H. RUMSFELD, Secretary, Department of Defense, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 224

580 F.2d 224

17 Fair Empl.Prac.Cas. 1398, 17 Empl. Prac.

Dec. P 8505

Dorothy JAMES et al., Plaintiffs-Appellants, v.Donald H. RUMSFELD, Secretary, Department of Defense, et al., Defendants-Appellees.

No. 76-2032.

United States Court of Appeals Sixth Circuit.

Argued Feb. 7, 1978.

Decided Aug. 1, 1978.

George M. Maurer, Jr., Zwerdling & Maurer, Judith A. Scott, Detroit, Mich., Karl W. Carter, Jr., American Federation of Government Employees, AFL-CIO, Washington, D. C., for plaintiffs-appellants.

James K. Robinson, U. S. Atty., L. Michael Wicks, Asst. U. S. Atty., Detroit, Mich., for defendants-appellees.

Before EDWARDS, CELEBREZZE and PECK, ^* Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal from the dismissal of plaintiffs' complaint alleging unlawful racial and sexual discrimination at the United States Army Tank Automotive Command (TACOM) in Warren, Michigan.Plaintiffs are all TACOM employees.We affirm.

Before filing this action, plaintiffs and others filed a so-called "third party allegation" of discrimination with TACOM, pursuant to 5 C.F.R. § 713.251(1977), discussedInfra.The gravamen of this charge was that TACOM had not properly implemented an affirmative action program it had adopted to enhance employment opportunities for minorities and women.Both TACOM and the United States Civil Service Commission(CSC) determined that TACOM had not lived up to the goals of its affirmative action plan but that this was not due to any agency discrimination and thus no corrective action was taken.This lawsuit followed in the district court, the plaintiffs seeking relief for themselves and others similarly situated.

The district court dismissed the complaint on the grounds that plaintiffs lacked standing since they had not adequately alleged personal injury, as required by Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343(1975).Without going into the details of the complaint, we agree with the district court that it is completely devoid of any specific allegations that any one of the plaintiffs has suffered from racial or sexual employment discrimination.The district court also refused plaintiffs leave to amend the complaint, reasoning that no amendment could allege adequate jurisdictional facts.The court held that even if plaintiffs amended and alleged sufficient personal injury, their use of a third party allegation was not appropriate exhaustion of administrative remedies as required for federal employees.We also agree with this legal conclusion by the district court and uphold its refusal to grant leave to amend.

Section 717 of the Civil Rights Act of 1964¹ governs this action since it is the exclusive judicial remedy for claims of discrimination in federal employment.Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402(1976).

Section 717 * * * proscribes federal employment discrimination and establishes an administrative and judicial enforcement system.Section 717(a) provides that all personnel actions affecting federal employees and applicants for federal employment "shall be made free from any discrimination based on race, color, religion, sex, or national origin."

Sections 717(b) and (c) establish complementary administrative and judicial enforcement mechanisms designed to eradicate federal employment discrimination.Subsection (b) delegates to the Civil Service Commission full authority to enforce the provisions of subsection (a)"through appropriate remedies, including reinstatement or hiring of employees with or without back pay," to issue "rules, regulations, orders and instructions as it deems necessary and appropriate" to carry out its responsibilities under the Act, and to review equal employment opportunity plans that are annually submitted to it by each agency and department.

Section 717(c) permits an aggrieved employee to file a civil action in a federal district court to review his claim of employment discrimination.Attached to that right, however, are certain preconditions.Initially, the complainant must seek relief in the agency that has allegedly discriminated against him.He then may seek further administrative review with the Civil Service Commission or, alternatively, he may, within 30 days of receipt of notice of the agency's final decision, file suit in federal district court without appealing to the Civil Service Commission.If he does appeal to the Commission, he may file suit within 30 days of the Commission's final decision.In any event, the complainant may file a civil action if, after 180 days from the filing of the charge or the appeal, the agency or Civil Service Commission has not taken final action.

Sections 706(f) through (k),42 U.S.C. §§ 2000e-5(f) through 2000e-5(k)(1970 ed. and Supp. IV), which are incorporated "as applicable" by § 717(d), govern such issues as venue, the appointment of attorneys, attorneys' fees, and the scope of relief.Section 717(e), finally, retains within each governmental agency "primary responsibility to assure nondiscrimination in employment. . . ."Id. at 829-32, 96 S.Ct. at 1966(footnote omitted).

Pursuant to its mandate in § 717(b), the CSC had, at the time this action began, promulgated regulations which required federal agencies to provide for two different administrative remedies.²The first, found in 5 C.F.R. §§ 713.211-713.222(1977), required the agency to provide intra-agency review of individual discrimination complaints.Its coverage was set forth in 5 C.F.R. § 713.212(1977):

(a) The agency shall provide in its regulations for the acceptance of a complaint from any aggrieved employee or applicant for employment with that agency who believes that he had been discriminated against because of race, color, religion, sex, or national origin.A complaint may also be filed by an organization for the aggrieved person with his consent.

(b)Sections 713.211 through 713.222 do not apply to the consideration by an agency of a general allegation of discrimination by an organization or other third party which is unrelated to an individual complaint of discrimination subject to §§ 713.211 through 713.222.(Section 713.251 applies to general allegations by organizations or other third parties.)

The second required administrative remedy, found in 5 C.F.R. § 713.251(1977), required the agency to provide intra-agency review of overall personnel policies at the request of "third parties."Its coverage was set forth in 5 C.F.R. § 713.251(a)(1977):

(a) Coverage.This section applies to general allegations by organizations or other third parties of discrimination in personnel matters within the agency which are unrelated to an individual complaint of discrimination subject to §§ 713.211 through 713.222.

The language of both § 713.212(b)and§ 713.251(a) made it clear that the two possible administrative remedies were distinct, although not mutually exclusive since a generalized third party procedure could possibly include grievances cognizable under the individual complaint procedure.The only administrative remedy pursued here was a third party allegation filed by plaintiffs and three others on behalf of their union local.The district court properly held that the third party allegation could not serve to meet § 717(c)'s exhaustion requirement and that only an individual complaint could, obviating granting leave to amend.

A Title VII suit in federal court is designed to provide specific relief for specific grievances.This is also the purpose of the individual complaint process in §§ 713.211-713.222.The third party allegation procedure in § 713.251, contrariwise, was designed to provide a generalized overall review of an agency's personnel policies vis-a-vis alleged discrimination.The generalized inquiries and findings appropriate to a third party procedure, and evidenced in this case, are simply not a proper administrative foundation for litigation seeking specific relief.³The agency has not been afforded an opportunity to remedy specific grievances, which is one of the purposes behind the exhaustion requirement.⁴

Plaintiffs assert that even if a third party allegation is not appropriate exhaustion for an individual's federal Title VII suit, it should be sufficient exhaustion for a class action, as the complaint here seeks to bring.We disagree.This court has upheld the propriety of class actions in federal Title VII suits and held that all members of the class need not individually exhaust their administrative remedies.Williams v. Tennessee Valley Authority, 552 F.2d 691(6th Cir.1977).But Williams still required a class representative who had properly exhausted administrative remedies, which is not the case here.Class actions still make specific, albeit class-wide, allegations of injury which would not necessarily be covered by the generalized third party allegation procedure.Thus, even a class action could not have been maintained here unless at least one proper class representative had pursued the individual complaint procedure.

As noted, the CSC has amended its regulations.During the pendency of this appeal, the CSC revoked the third party allegation regulation, § 713.251, and put two things in its place.First is a new § 713.251 which simply permits the consolidation of two or more individual complaints of discrimination.42 Fed.Reg. 11807, 11808(March 1, 1977).Second is a new subpart, 5 C.F.R. §§ 713.601-713.643, mandating specific agency procedures to handle class complaints of discrimination.42 Fed.Reg. 11807, 11808-11(March 1, 1977).As to class actions, then, the preferred administrative route for meeting § 717(c)'s exhaustion requirement is now the filing of a class complaint initially at the agency level.⁵This route should be pursued by plaintiffs, if they so desire.

The judgment of the district court is affirmed.

EDWARDS, Circuit Judge, concurring in part and dissenting in part.

I agree with Judge Celebrezze's...