Prince v. COMMISSIONER, USINS

• Citation: 713 F. Supp. 984
• Decision Date: 13 April 1989
• Docket Number: Civ. A. No. 83-CV-71022-DT.
• Parties: Blanche N. PRINCE, Plaintiff, v. COMMISSIONER, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

713 F. Supp. 984

Blanche N. PRINCE, Plaintiff, v. COMMISSIONER, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants.

Civ. A. No. 83-CV-71022-DT.

United States District Court, E.D. Michigan, S.D.

April 13, 1989.

COPYRIGHT MATERIAL OMITTED

George Leiken, Southfield, Mich., for plaintiff.

Karl Overman, Asst. U.S. Atty., Detroit, Mich., Linda Selbst, Southfield, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

JULIAN ABELE COOK, Jr., District Judge.

This is a civil action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The Plaintiff, Blanche N. Prince of Detroit, Michigan, is a former employee of the United States Immigration and Naturalization Service (INS) at the Port of Detroit. Prince alleges that due to age, race and sex discrimination by the INS, she was (a) repeatedly denied promotions within the agency between 1970 and 1978, (b) promoted to the position of Immigration Inspector in 1978 only to be terminated therefrom in 1979 without proper training and evaluation, and (c) reinstated by the INS in 1983 pursuant to a finding of discrimination by the United States Equal Employment Opportunity Commission (EEOC), but forced to retire prematurely from her position in 1984 because she was unwilling to undergo retraining.

The original Complaint in this cause, which was filed on March 21, 1983, cited the failure of the EEOC to make Prince whole pursuant to its finding of discrimination. On June 28, 1985, her Complaint was amended to include an allegation of "forced retirement" subsequent to the filing of the original Complaint.¹

As amended, Prince requests two separate species of relief beyond the redress which was afforded to her by the decision of the EEOC in 1983. First, she seeks back pay for a two-year period prior to the filing of her initial charge of discrimination with the EEOC as a remedy for the continuous discriminatory acts which were allegedly directed against her between 1969 and 1979. Second, Prince also seeks reimbursement of those monies that she would have earned between 1984 and 1988 (including the value of those promotions that would have been received).

On July 18, 1986, this Court denied the INS' motion for a summary judgment upon the amended Complaint pursuant to Fed.R. Civ.P. 56. A trial was conducted before this Court, sitting without a jury, between June 13, 1988 and June 20, 1988. The Court now enters its findings of fact and conclusions of law pursuant to Fed.R. Civ.P. 52(a).

I

A

The record reflects that Prince filed her administrative complaint on November 2, 1979. Following an informal inquiry in which the INS found that no discrimination had been visited upon Prince, she requested and received a formal hearing before an EEOC hearing examiner on February 26, 1982. The EEOC hearing examiner issued a Recommended Decision on December 30, 1982, in which he concluded that Prince had suffered discrimination because of her race and sex. The Recommended Decision was adopted by the INS on February 15, 1983.

Thereafter, dissatisfied with the extent of the remedy that had been afforded to her, Prince (a) lodged an administrative appeal with the EEOC Office of Review and Appeals on March 3, 1983, and (b) filed her Complaint in the instant federal civil action on March 21, 1983. On August 31, 1983, the EEOC Office of Review and Appeals issued a decision in which it concluded that the hearing examiner had improperly failed to award Prince (a) a retroactive increase in pay grade, and (b) an appropriate back pay and benefits on the basis of her contention that she would have advanced in grade and salary level in the absence of the wrongful termination.²

The preceding chronology of events presents a difficult threshold question for the Court, i.e., whether Prince exhausted her administrative remedies under section 717(c) of Title VII, 42 U.S.C. § 2000e-16(c), prior to the commencement of the instant lawsuit.

Section 717(c) of Title VII provides, in pertinent part:

Within thirty days of receipt of notice of final action taken by a federal executive agency ..., or by the EEOC upon an appeal from a decision or order of such ... agency ... on a complaint of discrimination based on race, color, religion, sex or national origin, ... an employee or applicant for employment, if aggrieved by the final disposition of his complaint, ... may file a civil action...

42 U.S.C. § 2000e-16(c).

In Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), the Supreme Court held that "section 717 of Title VII does not contemplate merely judicial relief. Rather, it provides for a careful blend of administrative and judicial enforcement powers." Id. at 833, 96 S.Ct. at 1968.

Section 717(c) permits an aggrieved employee to file a civil action in a federal district court to review his claim of employment discrimination. Attached to that right, however, are certain preconditions. Initially, the complainant must seek relief in the agency that has allegedly discriminated against him. He then may seek further administrative review with the Civil Service Commission, or, alternatively, he may, within 30 days of receipt of notice of the agency's final decision, file suit in federal district court without appealing to the Civil Service Commission. If he does appeal to the Commission, he may file suit within 30 days of the Commission's final decision.

Id. at 832, 96 S.Ct. at 1967 (emphasis added).³

The clear import of Brown is that a complainant may not pursue administrative and judicial remedies simultaneously, but must choose between them even at a point in the administrative process where Title VII would ordinarily allow the commencement of litigation. Such a restriction comports with the federal policy which generally underlies the exhaustion doctrine, i.e., the avoidance of inconsistencies between administrative and judicial decisions in connection with the same dispute. Thus, once Prince elected to pursue an appeal with the EEOC Office of Review and Appeals, she would have been precluded from filing suit in this Court until that phase of the administrative review had been completed.⁴

However, although district courts are empowered by Fed.R.Civ.P. 12(h)(3) to dismiss sua sponte a civil action at any time in which subject-matter jurisdiction appears to be lacking, see e.g., Casio, Inc. v. S.M. & R. Co., 755 F.2d 528, 529 (7th Cir.1985), this Court determines that it must overlook the apparent failure of Prince to conclude her administrative appeal prior to the filing of the instant lawsuit for several reasons.

First, although exhaustion is ordinarily a prerequisite to suit under Title VII, see Sampson v. Civiletti, 632 F.2d 860 (10th Cir.1980), it, like timeliness, is not a threshold jurisdictional requirement and may be viewed with discretion by the district court. Goza v. Bolger, 538 F.Supp. 1012 (N.D.Ga.1982), aff'd, 741 F.2d 1383 (11th Cir.1984); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 589 (5th Cir.1981) (en banc); Citicorp Person-to Person Financial Corp. v. Brazell, 658 F.2d 232, 234 (4th Cir.1981). In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Court "honored the remedial purpose" of Title VII by holding that the timely filing of a complaint with the EEOC was "not a jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to waiver as well as tolling when equity so requires." Id. at 398, 102 S.Ct. at 1135. This Circuit has viewed the exhaustion requirement with similar latitude. See, e.g., Rasimas v. Michigan Department of Mental Health, 714 F.2d 614, 620 (6th Cir.1983); see also, Stache v. International Union of Bricklayers and Allied Craftsmen, 852 F.2d 1231, 1234 (9th Cir.1988).

Second, at no time during the protracted course of this litigation did the INS object to Prince proceeding in this fashion, although it was well aware of the initiation and subsequent conclusion of her administrative appeal.⁵ On several occasions prior to the commencement of the trial in this matter, the INS argued that Prince had no legitimate dispute since the agency had provided her with all of the relief that had been ordered as a result of the EEOC appeal.⁶ Thus, to the extent that a defendant in a Title VII action may waive its exhaustion defense under Zipes v. Trans World Airlines, Inc., supra, this Court concludes that the INS waived such a defense in this cause.

Finally, Prince (a) derived no discernible benefit from the brief overlapping of the two actions, and (b) would now have no further administrative recourse since the EEOC resolved her final administrative appeal on August 31, 1983. Indeed, because of her claimed dissatisfaction with the relief which had been afforded to her by the EEOC Office of Review and Appeals, it may reasonably be inferred that she would ultimately have filed the instant civil action and raised the same issues which are now before this Court. Hence, Prince's failure to exhaust her administrative remedies or to pursue her administrative and judicial remedies seriatim rather than simultaneously must now be regarded as moot.

For these reasons, the important federal policies which favor exhaustion within the Title VII context would not be disserved by retaining jurisdiction of this case. Brown v. General Services Administration, 425 U.S. at 833, 96 S.Ct. at 1968; Edwards v. Department of the Army, 708 F.2d 1344, 1347 (8th Cir.1983) (crucial purpose of exhaustion requirement is to give the agency an opportunity to "develop a record and exercise its discretion, to apply its own expertise and, possibly, to discover and correct its own errors.)" Accordingly, any procedural defects that may have surfaced in Prince's simultaneous pursuit of an administrative appeal and a federal civil action during a brief period in 1983 will be disregarded by this Court.

B

In his Recommended Decision of December...