Nasem v. Brown

• Decision Date: 10 April 1979
• Docket Number: No. 77-1958,77-1958
• Citation: 193 U.S.App.D.C. 416,595 F.2d 801
• Parties: 18 Fair Empl.Prac.Cas. 1463, 18 Empl. Prac. Dec. P 8848, 193 U.S.App.D.C. 416 Charles NASEM, Appellant, v. Honorable Harold BROWN, Secretary of the Department of Defense, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 801

595 F.2d 801

18 Fair Empl.Prac.Cas. 1463, 18 Empl. Prac.

Dec. P 8848,

193 U.S.App.D.C. 416

Charles NASEM, Appellant, v. Honorable Harold BROWN, Secretary of the Department of Defense, et al.

No. 77-1958.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 30, 1978.

Decided Jan. 17, 1979.

Rehearing Denied April 10, 1979.

Lawrence Speiser, Washington, D. C., for appellant. L. M. Pellerzi and William J. Mahannah, Washington, D. C., were on the brief for appellant.

Regina C. McGranery, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Peter E. George, and Tobey W. Kaczensky, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.

Before WRIGHT, Chief Judge, J. EDWARD LUMBARD, Senior Circuit Judge for the Second Circuit, ^* and TAMM, Circuit Judge.

Opinion for the court filed by TAMM, Circuit Judge.

TAMM, Circuit Judge:

This appeal is from a decision of the United States District Court for the District of Columbia (Hart, J.) holding that the Army was not barred by the doctrine of collateral estoppel from relitigating in a Title VII action issues decided, in an earlier proceeding, by the United States Civil Service Commission's Office of Federal Equal Employment Opportunity (OFEEO) pursuant to 5 C.F.R. § 713.262(b) (1974). Because we believe that the administrative proceeding did not meet the test for giving collateral estoppel effect to administrative action promulgated by the Supreme Court in United States v. Utah Construction & Mining Co., 384 U.S. 394, 418-23, 98 S.Ct. 1545, 16 L.Ed.2d 642 (1966), we affirm the district court's judgment.

I

On April 29, 1974, Charles Nasem, plaintiff below, appellant here, was hired, in a probationary capacity, as a Computer Equipment Analyst in the Word Processing Branch of the United States Army's Adjutant General Center. During the time pertinent to this litigation, Nasem's immediate supervisor was Major Conrad Boterweg III who reported to Lieutenant Colonel Richard S. Seeberg.

On September 16, 1974, Nasem received a Warning Letter from Seeberg informing him that his performance was inadequate. ¹ Seeberg gave Nasem until November 15, 1974 to demonstrate that he was able to meet the minimum standards of the job. Seeberg stated that if Nasem did not improve by that date, Seeberg would recommend against Nasem's retention as a probationary employee. On October 24, 1974, Nasem, who is a Moslem of Pakistani origin, filed a discrimination complaint with the Army alleging that Major Boterweg had discriminated against him on the basis of race and national origin. ² On November 23, 1974, Nasem received a Notice of Extension of Warning Period which extended the period of evaluation of his job performance to January 15, 1975. ³

Nasem received an Advance Notice of Proposed Termination During Probation on January 24, 1975. In this letter Seeberg informed Nasem that his performance had not improved, and proposed to terminate his employment in seven days. On January 27, 1975 and February 7, 1975, Nasem filed a charge of reprisal ⁴ under 5 C.F.R. § 713.262(b)(1) (1974) in which he alleged that his superiors had taken action against him because he had filed a discrimination complaint on October 24, 1974. On February 21, 1975, Nasem was discharged. On March 25, 1975, Nasem filed a second discrimination complaint.

Nasem could have pursued his reprisal complaint in either of two ways as an independent claim of discrimination under 5 C.F.R. §§ 713.211-222 (1974) ⁵ or as a charge of reprisal under 5 C.F.R. § 713.262(b)(1) (1974). See 5 C.F.R. § 713.262(a) (1974). Nasem chose the second method which requires that a charge containing all pertinent facts be filed within fifteen days of the date of the alleged occurrence. The employee's agency then has fifteen days to investigate the charge and make its own report to the Civil Service Commission. A complaints examiner renders a decision on the basis of the submitted papers.

After Nasem filed his reprisal charge, the Army submitted a report by an equal employment opportunity specialist, Administrative Record IV at 520, that surveyed the reprisal allegations. The report concluded that "there is insufficient evidence to support that acts of reprisal were taken against Mr. Nasem because he filed a complaint of discrimination." Id. at 525.

On April 10, 1975, Anthony Hudson, the Director of the OFEEO, upheld Nasem's reprisal charge upon consideration of Nasem's two letters of complaint and the Army's reply. Mr. Hudson's report stated:

We have carefully reviewed the Department's own report of inquiry on the charge of reprisal filed by Mr. Charles Nasem. We acknowledge that the Department did indeed, have difficulty in supporting or refuting the alleged acts of reprisal, as it states in its own report. The Department's report, speaks only to some of the issues raised by Mr. Nasem, and offers no evidence to refute those allegations. Many of the issues that the report allegedly covers are left unanswered. The Department has not offered a scintilla of fact or evidence to dispute Mr. Nasem's allegation that his termination came about because of his having filed a discrimination complaint. . . .

There being no rebuttal or refutation from the Department, to demonstrate that final termination of the complainant, withholding of scheduled training, cancellation of TDY (tour of duty), and other cited actions were not based on reprisal, and there being only silence on many of Mr. Nasem's charges, we can only find, absent any evidence to the contrary, that the Department of the Army . . . did take reprisal against Mr. Charles Nasem, in connection with his presentation of a discrimination complaint.

Joint Appendix (J.A.) at 30. Accordingly, the OFEEO ordered the Army to restore Nasem to duty with back pay and without break in service by April 21, 1975.

Nasem returned to work on Monday, April twenty-first. On April 29, 1975, he received a second Advance Notice of Proposed Removal from Seeberg announcing that he would be removed for inefficiency based on his failure to perform three 1974 work assignments. The letter repeated verbatim the charges leveled against Nasem on January 24, 1975 in the first Advance Notice of Proposed Removal. On May 6, 1975 and May 8, 1975, Nasem claimed that the second Advance Notice was also in reprisal for his filing the October 24, 1974 discrimination complaint, and requested review under 5 C.F.R. § 713.262(b)(1). This time the Army appointed a Board of Inquiry (Board) to investigate the reprisal charge. The Board re-examined the allegations of reprisal reviewed in the April 10, 1975 OFEEO decision, as well as additional allegations made in the two May letters. The Board found that there had been no reprisal. On June 4, 1975, the OFEEO decided that the Army had now presented sufficient evidence to rebut Nasem's charge of reprisal. The OFEEO, however, made no findings concerning the merits of Nasem's proposed removal. J.A. at 36.

In addition to filing the reprisal charge in May 1975, Nasem also responded to the substance of the April 29, 1975 Advance Notice of Proposed Removal. On June 16, 1975, the Army decided that the reasons for Nasem's proposed removal were supported by substantial evidence. Id. at 37-38. Nasem's removal became effective on July 27, 1975. ⁶ On July 1, 1975, Nasem appealed his removal to the Federal Employees Appeals Authority (FEAA) of the Civil Service Commission.

The FEAA considered Nasem's appeal of his removal and his two discrimination charges filed on October 24, 1974 and March 25, 1975. Id. at 150. After a hearing held on October 28, 1975, the FEAA reviewed the reasons for removal given in the April 29, 1975 letter and sustained the charge of inefficiency. Id. at 153-66. The Commission rejected Nasem's discrimination claims, Id. at 168, as well as a motion for summary reversal, Id. at 171. Nasem argued that the Army was collaterally estopped from introducing evidence of his job performance because the OFEEO's April 10, 1975 decision found that the Army's earlier attempt to fire him, based on the identical charges of inefficiency, constituted illegal reprisal for the filing of a discrimination complaint. The FEAA stated, however, that this decision did not "reach the merits of either the notice of proposed removal or the appellant's allegations of discrimination." Id. at 165. Therefore, the FEAA concluded that the April tenth decision did not have either res judicata or collateral estoppel effect on the subsequent proceedings.

On March 8, 1976, Nasem filed a suit in the United States District Court for the District of Columbia seeking review of the FEAA's decision pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1976). Nasem moved for summary judgment arguing that the doctrine of collateral estoppel precluded the district court from considering the validity of his discharge. He asserted that because a valid non-discriminatory basis for discharge forecloses a determination of reprisal, the April tenth OFEEO decision prevented the Army from relying on the grounds which supported the claim of inefficiency in the first Advance Notice. The district court rejected the motion finding that the April tenth decision was not "a decision on the merits." Hearing of April 12, 1977 at 27. Subsequently, the district court conducted a de novo review of Nasem's claims and found that he had not been discriminated against, that no reprisals were taken against him, and that he was terminated for failure to perform adequately. Accordingly, the district court ordered judgment for the defendants. J.A. at 202-03. ⁷

II

Collateral estoppel bars relitigation of an issue actually and necessarily litigated and determined in a prior final judgment. Stebbins v. Keystone Insurance Co., 156 U.S.App.D.C. 326, 331, 481 F.2d 501, 506 (1973); Tutt v. Doby, 148 U.S.App.D.C. 171, 173, 459 F.2d 1195, 1197 (1972); Re...