Lee v. Sullivan

• Citation: 787 F. Supp. 921
• Decision Date: 26 March 1992
• Docket Number: No. C-89-2873 EFL (WDB).,C-89-2873 EFL (WDB).
• Parties: Pauline LEE, Plaintiff, v. Louis SULLIVAN, Secretary, Department of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of California

787 F. Supp. 921

Pauline LEE, Plaintiff, v. Louis SULLIVAN, Secretary, Department of Health and Human Services, Defendant.

No. C-89-2873 EFL (WDB).

United States District Court, N.D. California.

March 26, 1992.

COPYRIGHT MATERIAL OMITTED

Raymond W. Laing and David S. Handsher, San Francisco, Cal., for plaintiff.

U.S. Atty. William T. McGivern, Jr. and Asst. U.S. Attys. Stephen L. Schirle, San Francisco, Cal., and Beth McGarry, Pacifica, Cal., for defendant.

ORDER MODIFYING AND FINALIZING TENTATIVE ORDER

BRAZIL, United States Magistrate Judge.

On January 21, 1992, this court entered a tentative order specifying the claims plaintiff may pursue in this action and the relief to which plaintiff is entitled if she prevails. We invited the parties to file briefs by February 6, 1992 contesting any matter addressed in the order. The tentative order was to have become final on that date with respect to all matters that the parties did not so contest. On February 6, 1992, plaintiff filed a response to the tentative order contesting our finding that plaintiff's administrative complaint number FSA 418-88 is not properly before us and should be dismissed. On February 12, 1992, defendant filed an opposition to plaintiff's response to the tentative order.

On February 14, 1992, this court entered an additional order, on that occasion inviting the parties to submit briefs by February 28, 1992, on the issue of whether the Civil Rights Act of 1991 should be applied retroactively to this case. Both parties submitted briefs on the issue on February 28, 1992.

Having considered the parties' written submissions as well as the record herein, the court hereby ORDERS the following:

1. A status conference shall be held by telephone conference call on Wednesday, May 6, 1992 at 2:00 p.m. Counsel for defendant shall be responsible for arranging the conference and placing the call to chambers at (415) 556-2696.

2. For the reasons described in the opinion below, the tentative order issued on January 21, 1992 is hereby MODIFIED so that (a) plaintiff is not precluded from seeking relief for the DHHS' denial of her within grade increase in June, 1985 and for DHHS' removal of her from her position in June, 1985 on the grounds that these actions were the result of handicap discrimination and (b) plaintiff is not precluded from seeking compensatory damages under Section 201 of the 1991 Civil Rights Act. As so modified, the tentative order is now made final.

3. By April 17, 1992, plaintiff shall file an amended complaint if she wishes to seek compensatory damages. If plaintiff so files an amended complaint, defendant shall file an amended answer by April 29, 1992. May 6, 1992 shall be the deadline for demanding a jury trial.

OPINION

I. Administrative Complaint FSA 418-88

For the reasons set forth below, we now rule that no showing has been made that plaintiff is not entitled to challenge at trial on the grounds of handicap discrimination the DHHS' alleged denial of plaintiff's requested within grade increase in June, 1985 and the DHHS' alleged removal of plaintiff from her position on June 21, 1985 (hereafter referred to as "the 1985 DHHS employment actions"). However, plaintiff shall not be allowed to seek any relief in this forum based solely on the DHHS' alleged rescission of these two actions in October, 1987.

Administrative complaint number FSA-418-88 was brought by plaintiff on June 24, 1988 pursuant to regulations promulgated by the Equal Employment Opportunity Commission ("EEOC") (29 C.F.R. Part 1613). (Declaration of Harriette Treloar filed in this action on February 15, 1991 ("Treloar declaration") ¶ 20.) In the complaint, plaintiff asserted that each of the three following actions were products of handicap discrimination and reprisal against plaintiff for her prior EEO activity:

(a) DHHS' denial of plaintiff's within grade increase in June, 1985,

(b) DHHS' removal of plaintiff from her position on June 21, 1985,¹ and

(c) DHHS' decision to simply rescind these two acts in October, 1987, allegedly without providing plaintiff adequate relief for the harm in which these two acts resulted.

(Treloar decl. ¶ 20; Ex. 9 to Treloar decl.; Exs. 1, 6 to plaintiff's response to tentative order ("plaintiff's response").)²

Because the procedural history of the administrative actions surrounding this complaint is complicated, we briefly summarize it below for reference. Where relevant, the details of these various administrative actions will be discussed in our opinion, but we find it useful to set out a "roadmap" of the various events.

07/07/85 Plaintiff appeals to the MSPB the 1985 DHHS employment actions. (Treloar decl. ¶ 17.)

08/17/87 Plaintiff refiles her MSPB appeals for a final time after having received a number of extensions due to ill health. In these appeals, plaintiff alleges handicap discrimination, age discrimination, and reprisal. (Treloar decl. ¶ 17, Exs. 2, 3 to plaintiff's response.)

10/87 DHHS rescinds the 1985 DHHS employment actions. (Treloar decl. ¶ 17.)

11/13/87 In an initial decision, the MSPB dismisses plaintiff's appeals as moot. (Ex. 6 to Treloar decl.)

04/14/88 MSPB finalizes its decision dismissing plaintiff's appeals as moot. The MSPB notifies plaintiff that she may seek review of its decision before the Court of Appeals for the Federal Circuit. (Ex. 4 to plaintiff's response.)

05/16/88 Plaintiff seeks counseling with an EEOC counselor on the issues subsequently raised in FSA-418-88. (According to counsel for defendant in defendant's 2/17/92 opposition brief, page 3, lines 7-14.)

06/24/88 Plaintiff files EEO complaint number FSA-418-88 with the DHHS. (Treloar decl. ¶ 20.)

08/25/88 The DHHS rejects plaintiff's complaint pursuant to 29 C.F.R. § 1613.405(a). (Ex. 1 to plaintiff's response.)

01/24/89 Following plaintiff's appeal of the DHHS rejection to the EEOC/ORA, the EEOC/ORA dismisses the appeal pursuant to 29 C.F.R. § 1613.405(a) but informs plaintiff that, once the MSPB issues a final decision, she may seek review by the EEOC/ORA of "issues of prohibited discrimination that the MSPB considered in reaching its decision." (Ex. 5 to plaintiff's response.) (Apparently, the EEOC/ORA was unaware at this time that the MSPB had already issued its final decision.)

10/02/89 Following plaintiff's request that the EEOC/ORA reconsider its prior order, the EEOC/ORA issues a decision denying the request. The EEOC/ORA incorrectly finds that plaintiff did not raise allegations of discrimination in her MSPB appeals and that the prior EEOC/ORA order thus was incorrect in telling plaintiff she could seek review of the MSPB decision before the EEOC/ORA. (Ex. 9 to Treloar decl; Ex. 6 to plaintiff's response.)

In our January 21, 1992 tentative order, we proposed to make a finding that the claims for relief brought in EEO complaint FSA-418-88 were not properly before us because of plaintiff's apparent failure to follow proper administrative procedures. This proposed finding had two independent bases.

First, we tentatively found that the challenges to the 1985 DHHS employment actions were properly dismissed pursuant to 29 C.F.R. § 1613.405(a). That section requires the dismissal of EEO complaints brought by federal employees challenging employment actions by their agency employers that the employees already had challenged before the Merit Systems Protection Board ("MSPB"). See Vinieratos v. U.S., Dept. of Air Force, 939 F.2d 762, 770, n. 9 (9th Cir.1991). When an employee may challenge an adverse employment action either by appealing the action to the MSPB or by filing an EEO complaint,³ the employee may elect only one of the two forums in which to pursue the matter. 29 C.F.R. § 1613.403. We found that plaintiff had already appealed the 1985 DHHS employment actions to the MSPB on July 7, 1985 and that she was thus precluded from renewing her challenge to these acts in the form of a new EEO complaint.

Second, we found it likely that the entire administrative complaint was properly dismissed pursuant to 29 C.F.R. § 1613.214(a)(1). That section requires the dismissal of EEO complaints not initiated within 30 days after the alleged act of discrimination, unless there was good cause for the late filing under 29 C.F.R. § 1613.214(a)(4). EEO complaint FSA-418-88 was not filed until three years after the 1985 DHHS employment actions and approximately nine months after the DHHS' rescission of these actions. We found that this delay raised a very strong inference that the complaint was not timely filed.⁴

Because we had very little of the actual administrative record before us, we allowed plaintiff the opportunity to challenge our tentative findings by producing evidence from the administrative record that she did indeed follow proper administrative procedures. Plaintiff filed such a response.

We now find that plaintiff's challenge to the 1985 DHHS employment actions on the basis of handicap discrimination is properly before us.

This finding is based on a crucial fact about which our tentative order was mistaken: that plaintiff actually alleged handicap discrimination (and other forms of discrimination) in her MSPB appeal. We inaccurately noted in footnote 1 of the tentative order that plaintiff did not raise her allegations of discrimination before the MSPB. We made this finding in reliance upon findings by the EEOC Office of Reviews and Appeals ("EEOC/ORA") in its October 2, 1989 decision. In that decision, it stated that "the record indicates that plaintiff did not include her allegations of discrimination in her appeal to the MSPB." We now find this statement to be incorrect. In her February 6, 1989 response, plaintiff has provided the court with copies of the MSPB appeals she filed on August 17, 1987.⁵ These copies reveal that plaintiff did indeed allege handicap discrimination (not to mention age discrimination and reprisal) before the MSPB and even went so far as to designate each appeal as being a "mixed case." Thus, we...