Rivera-Rosario v. U.S. Dept. of Agriculture

• Decision Date: 11 August 1998
• Docket Number: P,RIVERA-ROSARI,No. 98-1135,98-1135
• Parties: 74 Empl. Prac. Dec. P 45,626 Delciolaintiff, Appellant, v. U.S. DEPARTMENT OF AGRICULTURE and Mike Espy, Secretary, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 34

151 F.3d 34

74 Empl. Prac. Dec. P 45,626

Delcio RIVERA-ROSARIO, Plaintiff, Appellant, v. U.S. DEPARTMENT OF AGRICULTURE and Mike Espy, Secretary Defendants, Appellees.

No. 98-1135.

United States Court of Appeals First Circuit.

Submitted June 3, 1998.

Decided Aug. 11, 1998.

Melva A. Quintana and Demetrio Fernandez on brief for appellant.

Fidel A. Sevillano del Rio, Assistant United States Attorney, and Guillermo Gil, United States Attorney, on brief for appellees.

Before BOUDIN, Circuit Judge, KEETON ^* and McAULIFFE, ^** District Judges.

PER CURIAM.

This case involves a claim of discrimination by Delcio Rivera-Rosario against the United States Department of Agriculture ("the Department"). In 1963, Rivera began working for the Department in Brooklyn, New York, and three years later was offered a transfer to Puerto Rico. The transfer was conditioned on Rivera signing a waiver renouncing "home leave" benefits that would otherwise have entitled him to special leave and allowances permitting him to return periodically to Brooklyn. Apparently the Department took the position that employees of Puerto Rican origin were--while stationed in Puerto Rico--not entitled to home leave benefits even if their prior employment by the Department began elsewhere in the United States.

After earlier unsuccessful procedural steps, eight employees including Rivera filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in January 1984 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The complainants said that the Department's home-leave policy discriminated against them on grounds of national origin. Under the statute and pertinent regulations issued by the EEOC, the initial responsibility for processing Title VII discrimination complaints by federal employees rests with the employing agency, in this case the Department of Agriculture; if there is a hearing, an independent administrative law judge presides and makes a recommended decision to the employing agency. ¹

Here, after delays due in part to negotiations, a hearing was held before an ALJ in May 1988. The ALJ then ruled from the bench that there had been unlawful discrimination by the Department in limiting home leave benefits for employees of Puerto Rican origin. The ALJ said that all the complainants should have home leave benefits in the future and were entitled to reimbursement for past benefits that had been wrongly withheld. ² The precise amounts, said the ALJ, depended on the position and former employment history of the individual complainant and should be "worked out between the parties."

Under EEOC regulations, the Department then had 60 days to adopt the recommendation, reject it, or modify it. 29 C.F.R. 1613.220 (1988). Apparently because settlement discussions were underway, the Department did not act within the 60-day period; but it did issue a decision in November 1988 adopting the ALJ's finding of discrimination. However, the Department specifically limited the retroactive benefits to a period beginning two years before the filing of the complaint with the EEOC on January 14, 1984.

The eight employees had not awaited this resolution before heading to court. Under the statutory scheme, Congress has permitted a federal employee aggrieved by alleged discrimination under Title VII to sue his or her agency in federal district court if the agency has not afforded the relief sought by the employee within 180 days of the filing of a complaint. 42 U.S.C. § 2000e-16(c). Whether the employee sues immediately after 180 days or awaits the final decision of the agency, the express statutory remedy is the same: the employee can begin the same de novo Title VII action in the federal district court that would be available to a private employee subject to unlawful discrimination. 42 U.S.C. § 2000e-16(c), (d).

The eight employees initiated a district court case in the federal district court for Puerto Rico in 1986, and then reactivated it after the Department's November 1988 decision. In October 1989, the plaintiffs filed a motion for summary judgment seeking "enforcement" of the ALJ's May 1988 recommended decision, which they read to provide them relief without the time limitation on reparations proposed by the Department. The Department cross-moved for summary judgment, pointing to a provision in the pertinent Title VII remedies provision expressly limiting "back pay" awards to no earlier than the two-year period before the filing of a formal complaint. 42 U.S.C. § 2000e-5(g)(1).

The district court in July 1990 agreed with the Department, issued an order limiting recovery to the two-year period, and expressed hope that the ruling would help the parties settle the dispute. In May 1991, seven of the eight plaintiffs, but not Rivera, settled with the Department for specified payments, and their claims were dismissed with prejudice. In August 1992, Rivera executed a stipulation of dismissal dismissing his own case without prejudice.

Almost a year later, in April 1993, Rivera brought a new action--from which the present appeal arises--in the same district court to recover for the same "national-origin" discrimination. The case was assigned to the same district judge who had presided over the 1986 action. The court concluded that discrimination was not disputed by the Department, that the only issue was damages, and that the two-year limitation period on back pay did apply to Rivera, as it had to the other seven plaintiffs in the earlier action. After reference to the magistrate judge, the district court found that Rivera was due $21,448.50.

Rivera has now appealed, urging that he is owed $113,864.60--an amount he says is properly owed to him based on the original ALJ recommended determination that contained no two-year limitation on the past period for which reparations would be payable. His main contention is that he is entitled to "enforcement" of the ALJ recommended decision on the ground that it became a final agency decision under EE0C regulations when the Department failed to alter it within 60 days. 29 C.F.R. § 1613.220

Any reader of Title VII's bare language would be puzzled by a reference to an enforcement action. Under the statute, a federal employee who does not receive redress for discrimination from his agency within 180 days is entitled to bring a civil action "as provided in section 2000e-5" against his agency, just like any other employee discriminated against by a private employer. See 42 U.S.C. § 2000e-16(c), (d). The Supreme Court has expressly ruled that a federal employee, like a private employee, is entitled to a de novo determination in the district court on his or her discrimination claim. Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). In such a case, the Court can enjoin unlawful discrimination and provide affirmative relief as set forth in the statute. 42 U.S.C. § 2000e-5(g)(1).

Nevertheless, several circuits have taken the view that a federal employee can sometimes initiate a district court action for relief under Title VII without making a de novo showing of discrimination. ³ The paradigm case is one in which an employee, dissatisfied with the agency's resolution of the discrimination claim, invokes an alternative review procedure provided by the statute for federal employees, namely, to seek review of the agency's decision by the EEOC itself. Cf. 42 U.S.C. § 2000e-16(c). Alternatively, an agency might, at least in theory, decide a discrimination claim in favor of an employee, adopt a remedy, and then fail to carry through with its commitment.

In some such cases, several circuits have indicated that the employee may be able, in the district court action, to rely upon whatever final agency determination has been secured and obtain enforcement from the district court without a de novo showing of discrimination or, in the alternative, argue that the district court should accept the finding of discrimination but provide even greater relief. This circuit has not previously addressed this issue, and we have no occasion to do so here. Rivera's theory depends entirely on the proposition that the ALJ decision is a "final" agency action that might be reviewed or enforced on its own.

A final decision in an adjudicatory proceeding is one that resolves not only the claim but, if liability is found, also the relief to be afforded. ⁴ Here, the ALJ explicitly contemplated, but declined to award, specific reparations pending negotiations; so, the ALJ's recommended decision was not a final decision resolving the controversy between the Department and Rivera. The EEOC's regulation requiring the agency to act within 60 days might--or might not--convert an otherwise final ALJ decision into a final decision of the agency charged with discrimination; but it obviously cannot supply finality to an ALJ decision that is itself not sufficiently complete to stand on its own.

Accordingly, since there is no claim that the ALJ ever entered an order prescribing a specific dollar award for Rivera. there is no final ALJ decision to "enforce." There may or may not be a final decision of the Department--it has been described to us but no one has troubled to supply us a copy--but Rivera has never expressed any interest in enforcing the Department's decision, which he says provided him inadequate relief. Finally, there is no EEOC decision to enforce since Rivera never sought review of the Department's decision before the EEOC.

What Rivera is therefore left with is a district court decision that treated his case as an...