Porter v. Adams
| Citation | 639 F.2d 273 |
| Decision Date | 13 March 1981 |
| Docket Number | No. 79-3635,79-3635 |
| Parties | 25 Fair Empl.Prac.Cas. 1107, 25 Empl. Prac. Dec. P 31,629 Ruby O. PORTER, Plaintiff-Appellant, v. Brock ADAMS et al., Defendants-Appellees. . Unit A |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Joseph W. Thomas, T. Carey Wicker, III, New Orleans, La., for plaintiff-appellant.
John P. Volz, U. S. Atty., Michaelle F. Pitard, Bill Baity, Asst. U. S. Attys., New Orleans, La., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before WISDOM, RUBIN and SAM D. JOHNSON, Circuit Judges.
Mrs. Ruby O. Porter, a black, formerly employed by the United States Coast Guard, brought this action under § 717 of Title VII, 42 U.S.C. § 2000e-16, alleging that her employer had discriminated against her because of her race. She appeals the district court's dismissal of her suit and its refusal to grant a preliminary injunction that would protect her ability to obtain the full relief she seeks. We affirm the dismissal, although in part for somewhat different reasons than those assigned by the district court, but remand this case for further findings and a ruling on the plaintiff's motion for a preliminary junction.
The facts are not in dispute. In June 1977, Mrs. Porter filed an Equal Employment Opportunity (EEO) complaint with the Coast Guard charging that her supervisor, Mrs. Winifred Scott, had discriminated against her because of her race. In September of the same year, because of actions taken by Mrs. Scott allegedly in response to the filing of that complaint, Mrs. Porter filed a charge of reprisal, a form of action different from the filing of an EEO complaint. 1 Mrs. Porter withdrew the June 1977 complaint after administrative proceedings resulted in a settlement. The charge of reprisal, however, was investigated by the Coast Guard's Office of Civil Rights, which determined that the charge had merit and recommended remedial action. Mrs. Porter alleges that the Coast Guard has never taken that remedial action despite her repeated entreaties to both the Department of Transportation and the Civil Service Commission.
In June 1978 and July 1979, Mrs. Porter filed two additional EEO complaints asserting new instances of discrimination. She alleged that the Coast Guard continued reprisal for filing her complaint; that she was reassigned to a new "deadend" position and that her former position was eliminated. These complaints are presently running the course of administrative proceedings.
In November 1978, Mrs. Porter filed this suit joining as defendants Mrs. Scott, various other Coast Guard officials, and Brock Adams, Secretary of the Department of Transportation, the department that oversees the Coast Guard. The complaint, as amended, contains substantially all the allegations of discrimination found in Mrs. Porter's September 1977 charge of reprisal and in the June 1978 and July 1979 EEO complaints. Mrs. Porter sought reinstatement to her former position, injunctive relief against further discrimination, compensatory and punitive damages, and attorney's fees. When, as mentioned, the Coast Guard decided to eliminate her former position in the spring of 1979, Mrs. Porter sought a preliminary injunction to block that action. 2
After trial before a magistrate, the district court dismissed Mrs. Porter's suit. Insofar as the suit involved claims that were the subject of her June 1978 and July 1979 EEO complaints, the court held that it was untimely because Mrs. Porter had failed to exhaust her administrative remedies. To the extent that Mrs. Porter urged claims that were part of her June 1977 complaint, the suit was barred because of the administrative settlement. As to those claims that arose from the acts she had complained of in her charge of reprisal, the court decided that they should be remanded to the agency for consideration along with the two pending EEO complaints. In the court's view, those claims were all inextricably intertwined and postponement of the reprisal claim was preferable to piecemeal judicial review. The court did not rule on Mrs. Porter's motion for a preliminary injunction.
Section 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, under which this action was brought, prohibits discriminatory employment practices by most federal agencies, including the Coast Guard. This section gives the Civil Service Commission the power to enforce the section and authorizes the Commission to issue rules and regulations providing procedures for intra-agency review of all complaints of discrimination made by employees and applicants for employment. 3 A complainant may bring a civil action under the section only after final administrative action has been taken or after certain statutorily defined periods have elapsed. 4
Mrs. Porter recognizes that, with respect to the claims stated in her June 1978 and July 1979 EEO complaints, none of the prerequisites to judicial review required by § 717 had been satisfied at the time this action was filed. Similarly, she does not challenge the dismissal of those claims listed in her June 1977 administrative complaint, since those have already been settled. Thus, she limits this appeal to the dismissal of those claims originally listed in her September 1977 charge of reprisal.
The exhaustion requirement, mentioned above, is found in § 717(c) and is an absolute prerequisite to suit under that section. See Brown v. GSA, 1976, 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402, 411. Section 717(c) allows a civil action to be filed only after the agency has taken "final action" on a "complaint of discrimination" or, if no "final action" is taken, after 180 days have elapsed from the filing of the complaint of discrimination. In either case, the sine qua non for civil action is the filing of a complaint. Since the statute gives the Civil Service Commission the authority to set up the administrative machinery for dealing with complaints of discrimination, a fortiori the Civil Service Commission has the authority to determine what constitutes the filing of a complaint within the meaning of § 717. The central question then is whether the Civil Service Commission intended a charge of reprisal to function as a complaint providing a path to judicial review. A close examination of the regulations dealing with reprisal actions convinces us that the Civil Service Commission did not so intend.
A federal employee who believes that reprisal actions have been taken against her for filing an EEO complaint has two ways to raise her grievance: she may file a new EEO complaint or she may file a charge of reprisal. 5 C.F.R. §§ 713.261-.262 (1978). The administrative procedures attached to each differ substantially. To file an EEO complaint, an employee must first seek informal counseling with one of the agency's EEO counselors; if this proves unhelpful, the complaint is formally filed with the agency; after investigation and further attempts at conciliation, the employee has the option to request a trial-type hearing before an examiner who is not an employee of the agency; and finally, the head of the agency, or his designate, issues a final decision on the matter. Id. §§ 713.211-.222. This final decision is the "final action" that gives an employee the right to bring a civil action. 5 In contrast, the charge of reprisal requires no informal counseling, no attempts at conciliation, and provides no option for a trial-type hearing. Instead, upon receipt of the charge in writing, the agency must, within 15 days, investigate the charge, take action if necessary, and report the charge and action taken to the Civil Service Commission. If the agency takes no action within 15 days, the employee can go directly to the Civil Service Commission, which can require the agency to take whatever action it deems appropriate. Id. § 713.262(b).
As is clear from the regulations, the charge of reprisal is an alternative to the EEO complaint, a shortcut providing quicker redress for that particular type of discrimination than the formal complaint affords. To hold that it also provides a shortcut to judicial review, however, would erode the carefully structured scheme for resolving charges of discrimination within federal agencies. Most, if not all, employees who feel that they were victims of reprisal would file charges of reprisal if it allowed them to bypass the more involved procedures informal counseling, investigation, attempts at conciliation, and trial-type hearing that accompany the filing of a formal complaint. As Brown v. GSA recognized, those procedures should not be easily circumvented, for they are part of the "careful blend of administrative and judicial enforcement powers" envisioned by § 717. 425 U.S. at 833, 96 S.Ct. at 1968. Those procedures allow the parties to explore and develop the facts, increasing the likelihood of an intra-agency resolution of the employee's grievances before resort to litigation becomes necessary. And conciliation, rather than litigation, is a recognized goal of Title VII. See, e. g., Dent v. St. Louis-S.F. Ry., 5 Cir. 1969, 406 F.2d 399, 402; Macklin v. Spector Freight Systems, Inc., D.C.Cir. 1973, 478 F.2d 979, 994 n.30.
Further evidence that the regulations do not contemplate judicial review of a charge of reprisal is found in 5 C.F.R. § 713.281 (1978). That section, which deals with the right to file a civil action, speaks only of judicial review after final action on a complaint; it makes no mention of charges of reprisal.
We therefore conclude that the filing of a charge of reprisal under 5 C.F.R. § 713.262(b) (1978) does not provide a route to judicial review. This decision imposes no unusual hardship on victims of reprisal. It merely presents them with a choice between, on the one hand, the opportunity for an expedited administrative resolution of their grievances without judicial review, and, on the other hand,...
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