Mahroom v. Hook
| Decision Date | 04 November 1977 |
| Docket Number | No. 75-2885,75-2885 |
| Citation | 563 F.2d 1369 |
| Parties | 16 Fair Empl.Prac.Cas. 130, 15 Empl. Prac. Dec. P 7953 Adiba MAHROOM, Appellant, v. Colonel John HOOK, Commandant, Defense Language Institute, West Coast Branch, an agency of the U. S. Government, and Howard B. Calloway, Secretary of the United States Army, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Susan J. Davis, Seaside, Cal., argued for appellant.
John F. Cooney, Jr., Asst. U. S. Atty., San Francisco, Cal., argued for appellees.
Appeal from the United States District Court for the Northern District of California.
Before CARTER, WATERMAN, * and ANDERSON, Circuit Judges.
Appellant, Adiba Mahroom, an applicant for federal employment, brought suit against the commandant of the Defense Language Institute (DLI) at Monterey, California, and the Secretary of the Army, principally under Title VII of the Equal Employment Opportunity Act of 1972 (42 U.S.C. § 2000e-16(c)), for employment discrimination upon the basis of sex and national origin. 1 In her complaint, she demanded a declaratory judgment, injunctive relief concerning such alleged discrimination, damages (including lost wages), cost of suit, and attorneys' fees. After providing counsel an opportunity to be heard, the district court denied appellant's motion for leave to amend her complaint and granted appellees' motion for summary judgment, dismissing the action. We affirm the denial of the motion for leave to amend, but we reverse and remand the grant of summary judgment.
Mahroom, a female naturalized citizen of Iraqi descent, has twice been employed at the DLI in temporary positions as a training instructor in Arabic. She has received advanced degrees in education and was considered to be a good teacher by her supervisor at DLI.
In 1971, the DLI announced that teaching positions were open in the Arabic Department, and instructors were to be selected from highly-qualified applicants with Egyptian, Syrian or Iraqi background, in that order. 2 Mahroom applied for one of the positions; however, she did not obtain an interview or a position. As she failed to obtain employment, she filed a formal complaint on October 28, 1971, alleging discrimination based upon sex and national origin.
After an unsuccessful attempt at an informal resolution of her grievance, the complaint was forwarded to the U. S. Army Civilian Appellate Review Office. An investigator was assigned to undertake a detailed investigation of the facts. After carefully exploring the matter, the inspector reported that student demand justified establishment of selection preferences for persons proficient in the Egyptian and Syrian dialects, and recommended, therefore, a finding of no discrimination. On December 29, 1971, the recommendation was approved by the Civilian Personnel Office.
Subsequently, Mahroom requested a hearing before an Appeals Examiner assigned to the agency by the Civil Service Commission (CSC), and a hearing was conducted on March 14-15, 1972. On June 7, 1972, the Appeals Examiner issued his report, concluding that appellant had not been the victim of discrimination.
On October 27, 1972, the Army's Director of Equal Employment Opportunity (EEO) accepted the finding of no discrimination. This, the final decision, was appealed to CSC's Board of Appeals and Review (BAR). On March 22, 1973, the BAR affirmed the agency decision. However, the BAR did not send Mahroom a "Right-to-Sue" letter. 3
Appellant thereafter sought help from the ACLU and from the San Francisco Lawyer's Committee for Urban Affairs. 4 The ACLU advised her that she had 90 days after the BAR's decision was issued in which to bring a civil suit, while the Lawyer's Committee informed her that the time for court action expired 30 days after the final decision. Upon receiving this information, appellant wrote to the BAR, asking why she was not advised of her right to sue. On July 5, 1973, the CSC wrote back to her, stating that under its interpretation the Equal Employment Opportunity Act of 1972 (which included 42 U.S.C. § 2000e-16) was not retroactive and that, therefore, she had no right to notification. 5
Appellant went on to request reconsideration of the final agency decision. 6 Reasoning that she had not established a proper basis on which to reopen the prior decision, the BAR rejected the request on November 7, 1973.
Another teaching position in the Arabic Department at DLI opened up in early 1973. Again, appellant applied for the position and was not selected. As a result, a second complaint, alleging discrimination based on sex and national origin, was filed on July 27, 1973.
On August 6, 1973, the EEO officer for DLI rejected the complaint in accordance with 5 C.F.R. § 713.215 7 for the reason that it set forth identical matters contained in the previous complaint. This decision was appealed, and on November 19, 1973, the BAR affirmed.
This time appellant was given her "Right-to-Sue" letter. In this letter of final action the BAR stated:
Mahroom received notice of this final action on November 21, 1973. Within the requisite thirty days, she instituted this action in the district court, filing her complaint on December 20, 1973. On April 24, 1975, the appellees moved to dismiss or, alternatively, for summary judgment. As she substituted counsel on May 29, 1975, the scheduled hearing on the motion was postponed. On June 23, 1975, she filed a memorandum in opposition to appellees' motion and a motion for leave to amend the complaint by adding a cause of action based on the 1971 administrative complaint.
On August 1, 1975, both motions were heard. The motion to amend was denied, and the motion for summary judgment was granted. It is from these decisions that this appeal follows.
As discussed above, when the Civil Service Commission's Board of Appeals and Review finally denied Mahroom's claim of discrimination, they did not provide her with her statutory notice of right to sue or what is commonly referred to as the "Right-to-Sue" letter.
Mahroom's claim began in 1971. The effective date of the Equal Employment Opportunity Act (42 U.S.C. § 2000e, et seq.) is March 24, 1972. Her claim was therefore pending administratively on the effective date of the Act.
Because the Commission interpreted the Act as not retroactive to her 1971 claim, they held that she had no right to notification of her right to bring suit in federal court.
Our first inquiry is to decide whether the Equal Employment Opportunity Act is retroactive to cases which are pending administratively at the time of the effective date of the Act. Or, in other words, was Mahroom entitled to notice of her right to sue once the administrative agency's decision to deny her complaint was final?
In Koger v. Ball, 497 F.2d 702 (4th Cir. 1974), that court held:
"We conclude that Congress, being fully aware of the general rule favoring retrospective application of procedural statutes, intended by enacting § 717(c) (42 U.S.C. § 2000e-16(c)) to grant employees consent to sue for redress of pending cases of pre-Act discrimination." (497 F.2d at 708-709)
And, in Womack v. Lynn, 164 U.S.App.D.C. 198, 504 F.2d 267 (1974) (), the court held:
(504 F.2d at 269) (emphasis in original).
Womack was followed in Grubbs v. Butz, 169 U.S.App.D.C. 82, 514 F.2d 1323 (1975). Other cases which follow this reasoning are: Weahkee v. Powell, 532 F.2d 727 (10th Cir. 1976); Huntley v. Dept. of H.E.W., 550 F.2d 290 (5th Cir. 1977); Eastland v. Tennessee Valley Authority, 553 F.2d 364, 369 (5th Cir. 1977); and Brown v. General Services Administration, 507 F.2d 1300 (2nd Cir. 1974), aff'd, 425 U.S. 820, 824 n. 4, 96 S.Ct. 1961, 48 L.Ed.2d 402. (The Supreme Court observing that it had "no occasion to disturb" the Second Circuit's decision on retroactivity). See also Bunch v. United States, 548 F.2d 336 (9th Cir. 1977) and Davis v. Valley Dist. Co., 522 F.2d 827 (9th Cir. 1975), cert. den., 429 U.S. 1090, 97 S.Ct. 1099, 51 L.Ed.2d 535 (1977).
Following this line of authority we hold that the Equal Employment Opportunity Act is retroactive to embrace claims administratively pending on its effective date and is therefore applicable to Mahroom's 1971 action. Under the Act, 42 U.S.C. § 2000e-12 gives the Commission the authority to issue suitable procedural regulations to carry out the provisions of the Act. In exercise of this authority, the Commission promulgated, among others, 5 C.F.R. § 713.234 and § 713.282.
5 C.F.R. § 713.234, at the time in question, 8 provided in pertinent part:
(emphasis...
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