President v. Vance
| Decision Date | 25 April 1980 |
| Docket Number | No. 78-1226,78-1226 |
| Citation | 627 F.2d 353,200 U.S.App.D.C. 300 |
| Parties | 22 Fair Empl.Prac.Cas. 1017, 22 Empl. Prac. Dec. P 30,870, 200 U.S.App.D.C. 300 Samuel R. PRESIDENT, Appellant, v. Cyrus R. VANCE, Secretary, United States Department of State, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Roma J. Stewart, Washington, D.C., for appellant.
John H. E. Bayly, Jr., Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., Washington, D.C., at the time the briefs were filed, John A. Terry, Peter E. George and Dennis A. Dutterer Asst. U. S. Attys., Washington, D.C., were on brief, for appellees.
Before BAZELON, Senior Circuit Judge, and LEVENTHAL * and ROBINSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
This appeal is but the latest skirmish in Samuel R. President's five-year quest for complete relief from the effects of admitted racial employment discrimination at the Department of State. The question is the precision with which a federal employee must formulate his grievance in order to exhaust administrative remedies prior to suit under Title VII of the Civil Rights Act of 1964. 1 The District Court granted the motion of the Secretary of State for summary judgment, holding that President had not exhausted sufficiently with regard to the particular relief he now seeks. 2 We affirm in part, reverse in part, and remand for further proceedings.
Our decision hinges importantly on a proper interpretation of the facts. We pause, then, at the outset to review them in some detail against the administrative and judicial backdrop of the case.
President entered the State Department's foreign service reserve at level FSR-6 in 1960, and was hired as a foreign service staff officer, FSS-4, in 1963. 3 In 1968 he left the foreign service and was appointed to a GS-11 position as a contract specialist in the Department. 4 He became a career officer in 1971 and in 1974 the first black officer ever assigned to the Office of International Arts Affairs (CU/ARTS) of the Department's Bureau of Educational and Cultural Affairs (CU). 5 It was there that his troubles began.
Whatever the causes, President's relationships with his co-workers were stormy from the start. He frequently felt that he was being asked to perform tasks below the level of his civil service grade; 6 co-workers, on the other hand, complained that he was exceeding his authority and trying to throw his weight around. 7 In no small part the problems stemmed from disagreement over the exact nature of his position and duties. When President joined CU/ARTS as a GS-12 contract specialist, a GS-14 administrative officer was in the process of retiring. 8 Guy E. Coriden, the director, decided to divide the retiring officer's duties between President and Bart N. Stephens, the deputy director and President's immediate superior, who had been with the Bureau just two weeks longer than had President. 9 Stephens was assigned "only those duties having to do with budget preparation" and others necessary for him to learn his new position; 10 President was to carry out "(t)he bulk of the fiscal, admin(istrative) and transportation work." 11 Having made this allocation, Coriden departed for seven months, leaving Stephens in charge of the office. 12
During Coriden's absence disputes, seemingly petty, began to arise between President and some of his co-employees. These squabbles ranged from President's own claim that he was being assigned menial tasks 13 to contentions of other employees that he was interfering with their ability to do their jobs. 14 When Coriden returned, he discovered that the retired officer, some of whose functions supposedly had become President's, was still coming to the office two days a week. 15 This, according to Stephens, was necessary because President was unable to discharge adequately the responsibilities entrusted to him. 16
President's difficulties in CU/ARTS climaxed when Stephens, in his capacity as supervisor, wrote a highly unfavorable evaluation report on President's performance. 17 Stephens rated him only average in eleven and below average in five of the seventeen categories addressed in the report. 18 In written comments accompanying the report, Stephens asserted that President was unable to perform many of the duties specified in his job description, and concluded, "I consider Mr. President, through no fault of his own, to have been misplaced and misassigned" in the Bureau. 19 Coriden, as director of the office, reviewed the evaluation and agreed with Stephens on many points. Coriden disagreed, however, with Stephens' overall conclusion, stating that "based on Mr. President's background and experience I do not believe he was misassigned but (I believe that he) could have been expected to do the work." 20
All other employees of CU/ARTS were rated as average to above average in performance. 21 Quite understandably, President was outraged at being evaluated so harshly, and he presented a detailed rebuttal running to nearly 100 pages, including attached exhibits. 22 In his rebuttal, President contended that he had been victimized by racial discrimination in the performance evaluation, and stated his intention to pursue administrative remedies and ultimately file a lawsuit against the Department. 23 On October 17, 1975, Stephens, apparently jarred by the tone of President's rebuttal, submitted eighteen pages of comments in which, to make a long story short, he denied virtually all of President's allegations. 24
On October 21, 1975, President conferred with Claudia E. Anyaso, an equal employment opportunity (EEO) counselor at the State Department, and charged that the performance evaluation prepared by Stephens was racially motivated. 25 Subsequently, on December 4, President then without legal counsel filed a formal administrative complaint 26 pursuant to Title VII and the implementing civil service regulations. 27 His major charges were that Stephens had discriminated against him on the basis of race in the provision of employment opportunities and in preparing the controversial performance evaluation report. 28 In the complaint President requested three remedies:
1. Remove the subjective, racially motivated Performance Rating Report and insert therefor a fair and objective Performance Rating Report. . . .
2. Eliminate the present unwritten policy in CU to eliminate, downgrade, or prevent the promotion of Minority Officers and Employees at the GS-12 (level) or above . . . .
3. Require the Director and Deputy Director (of) CU/ARTS to attend the Department of State's EEO seminars. 29
The Department thereupon commenced an investigation in an attempt to resolve the complaint and on August 6, 1976, issued its decision. The Deputy Assistant Secretary of State concluded that Stephens had refused to assign to President "the duties and responsibilities of his position." 30 The Deputy Assistant Secretary further found that "there was in the overall job situation de facto discrimination against (President) which resulted in unsatisfactory working conditions as well as the Performance Evaluation wrongly predicated upon the situation and the reactions of (President) and his supervisor to it," and that there was "significant evidence that there was discrimination against Mr. President and that remedial action is called for." 31 A three-fold remedy was proposed: that the offending performance evaluation be removed from President's personnel file, that the new deputy director of CU/ARTS who had not been accused of discriminatory conduct attend the Department's equal employment opportunity (EEO) seminars, and that President's position be audited with the understanding that he would be reassigned should it be proven that his responsibilities were not at the GS-12 level. 32
By letter of August 23, 1976, President accepted the finding of discrimination but rejected the remedial steps proposed. He contended that "(t)he remedies and relief granted should be comparable in scope to the remedies and relief required by the Federal Personnel Manual and the Department of State's own regulations," as well as "the remedies required by Title VII." 33 He quoted sections of the Federal Personnel Manual permitting, among other correctives for employment discrimination, retroactive promotion and backpay, or immediate promotion to a new position. 34 In the same letter, he requested a hearing. 35
The Civil Service Commission appointed a hearing examiner and set a hearing for October 18, 1976. 36 On October 12, President wrote to the State Department's chief EEO officer complaining that in a letter to the Commission the Department had "improper(ly) narrowed (the) focus of (his) complaint." 37 In this letter, President apparently tried to clarify any question about what he sought:
I was included, as well as others, in the remedy that I requested for getting promoted above the GS 12 level by eliminating the present unwritten policy in CU to eliminate, downgrade or prevent the promotion of Minority Officers and Employees at the GS 12 (level) or above. . . . 38
On October 13, the Department's acting EEO officer responded, agreeing that the hearing was to be confined to the question of remedy. 39 On the same date, President informed the Department that for the first time in the lengthy proceeding he had secured legal representation. 40
On November 8, 1976, more than 180 days after the filing of the administrative complaint, President instituted this action in the District Court. 41 Two days later, he withdrew his request for an administrative hearing and asked for "a final agency decision based on the record adduced thus far." 42 On November 18, the Department sent President a letter incorporating its final decision a grant only of the relief set...
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