Rozier v. Roudebush

• Decision Date: 03 January 1978
• Docket Number: No. CV376-17.,CV376-17.
• Citation: 444 F. Supp. 861
• Parties: Billy H. ROZIER, on behalf of himself and all others similarly situated, Plaintiff, v. Richard A. ROUDEBUSH, Individually and in his official capacity as Director of the Veterans Administration, Harold O. Duncan, Individually and in his official capacity as Center Director and Chief Equal Employment Opportunity Officer of Veterans Administration Center, Dublin, Georgia, Robert Hampton, Individually and in his official capacity as Chairman of the United States Civil Service Commission, Ludwig U. Andolsek, Individually and in his official capacity as Commissioner of the United States Civil Service Commission, Georginia Sheldon, Individually and in her official capacity as Commissioner of the United States Civil Service Commission, and their successors in office, Defendants.
• Court: U.S. District Court — Southern District of Georgia

444 F. Supp. 861

Billy H. ROZIER, on behalf of himself and all others similarly situated, Plaintiff, v. Richard A. ROUDEBUSH, Individually and in his official capacity as Director of the Veterans Administration, Harold O. Duncan, Individually and in his official capacity as Center Director and Chief Equal Employment Opportunity Officer of Veterans Administration Center, Dublin, Georgia, Robert Hampton, Individually and in his official capacity as Chairman of the United States Civil Service Commission, Ludwig U. Andolsek, Individually and in his official capacity as Commissioner of the United States Civil Service Commission, Georginia Sheldon, Individually and in her official capacity as Commissioner of the United States Civil Service Commission, and their successors in office, Defendants.

No. CV376-17.

United States District Court, S. D. Georgia, Dublin Division.

October 28, 1977.

On De Novo Hearing January 3, 1978.

Bernice Turner, Macon, Ga., for plaintiff.

Kenneth C. Etheridge, Asst. U. S. Atty., Savannah, Ga., for defendants.

ORDER ON DEFENDANTS' MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT

LAWRENCE, District Judge.

Effective August 29, 1975 the plaintiff, a black male, was discharged as a Nursing Assistant at the Veterans Administration Center at Dublin, Georgia, where he had worked since March, 1970. The basis of his termination was the alleged abuse of patients by Mr. Rozier.

On July 11, 1976, plaintiff brought the present federal court action seeking individual as well as class relief. He alleges that he was discharged because of his race and seeks declaratory and injunctive relief against the defendants because of racial discrimination in various practices and policies at the Center. Rozier prays for reinstatement in the position he held and backpay for himself and for the class of blacks he seeks to represent.

I Preliminary Comments

Plaintiff's action is brought pursuant to the Civil Rights Act of 1964 as amended in 1972. Section 717(c) of the Amendment provides that within thirty days of receipt of notice of final action by a department or agency or by the Civil Service Commission upon appeal from a decision or order on a complaint of discrimination by race, color, sex, religion or national origin by a Government department or agency, an aggrieved employee may file a civil action in a federal district court. See 42 U.S.C. § 2000e-16(c).¹

The defendants have moved for dismissal or in the alternative for summary judgment. Oral argument on the motion was had at Dublin on June 6, 1977, and additional briefs have been filed since that time.

The Government's position largely turns on the alleged failure of plaintiff to comply with the Civil Service regulation requiring that a complaint to an agency may be accepted only if, within 30 days after the alleged act of discrimination or adverse personnel action occurs, complainant has brought same "to the attention of the Equal Employment Opportunity Counselor." 5 C.F.R. § 713.214.

The Government contends that Rozier did not exhaust his administrative remedies which, under Section 717(c), is a prerequisite to bringing an action in this Court. Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402; Penn v. Schlesinger, 497 F.2d 970 (5th Cir.); Swain v. Hoffman, 547 F.2d 921 (5th Cir.). Failure to bring the discrimination complaint to the attention of the EEO Counselor within the time prescribed by 5 C.F.R. § 713.214(a)(1)(i) does not satisfy the exhaustion doctrine established by the Supreme Court in Brown. Ettinger v. Johnson, 518 F.2d 648 (3rd Cir.); Henry v. Schlesinger, 407 F.Supp. 1179 (E.D., Pa.); Spears v. Veterans Administration Hospital, et al., (Civ.No. 76-0031-GT, 9/14/76, S.D.Cal.).

Rozier contends that he was "prevented by circumstances beyond his control from submitting the matter within the time limits" and that the agency was required to extend the time limit for counselling with the EEO Counselor as provided in 5 C.F.R. § 713.214(4).

II Administrative Background

This case is a bureaucratic cauchemar. The record runs to several hundred pages. The greater part is composed of lengthy exhibits, including VA investigations, a full-scale appellate hearing, decisions on the administrative level and the two separate appeals before separate review appellate agencies of the Civil Service Commission.

All of these proceedings on the administrative level are lost endeavor under the Civil Rights Act as amended in 1972. Where racial discrimination is claimed, Section 717 gives the complaining federal employee the right of a trial de novo in a district court. Chandler v. Roudebush, Administrator of Veterans Affairs, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416. Such right includes a de novo judicial reexamination of the issue as to timely EEO counselling and the question of excusability of non-compliance with the requirement to contact an EEO Counselor within thirty days after the alleged act of discrimination. See Henry v. Schlesinger, supra, 407 F.Supp. at 1184; Ettinger v. Johnson, supra, 518 F.2d at 652 and same case on remand, 410 F.Supp. 519 (E.D., Pa.).

I attempt below to outline the background of this litigation before it reached this Court.

(a) The lengthy and very complex administrative procedures in this case apparently began in November, 1973. They had their inception in rumors, complaints or reports that Rozier mistreated patients.² The Chief of Staff of the VA Center at Dublin looked into the matter but found no one willing to talk. The rumors resurfaced in August or September, 1974.³ A thorough investigation of the alleged offense was undertaken. It was carried on during the fall of that year by a Special Investigator of the Central Office of VA. See Investigative Report, Gov't. Ex. B, pp. 157-231 (and exhibits thereto); Gov't. Ex. C, pp. 15-16.

(b) By letter delivered to Rozier on May 12, 1975, he was given advance notice of his proposed removal. On August 15, 1975, he was formally notified of the decision to remove him from employment effective August 29, 1975, for the reasons stated in the notice of proposed removal. The employee was informed of his right of appeal to the Federal Employee Appeals Authority, Atlanta.⁴

(c) After Rozier had been informed of his proposed discharge, he filed (June 19, 1975) a charge of "Discrimination and Complaint" against the Nursing Service at Dublin. On August 28, 1975, he withdrew same. Gov't. Ex. B, p. 90; Gov't Ex. A, pp. 26-27. The following day (the effective date of his termination) plaintiff filed a formal "Complaint of Discrimination" with the VA Center, complaining of discrimination against himself and black employees in policies involving recruiting, hiring, summer programs, testing job classifications, salaried and managerial positions. He sought reinstatement with backpay and investigation and changes in policies as to blacks. Gov't. Ex. B, p. 90. In the EEO complaint Rozier alleged that he had been discharged for racial reasons.

(d) Plaintiff filed an "adverse action" appeal pursuant to 5 C.F.R. § 752.5. When the Appeals Officer of the Federal Employee Appeals Authority who was handling the adverse action appeal (752-B, Civil Service Regulations) learned that there was an EEO complaint alleging that complainant had been terminated for racial reasons, he informed plaintiff's counsel that her client must elect between the two appeals procedures.⁵ On October 13, 1975, counsel replied that the complainant wished to proceed under the adverse action appeal. Gov't. Ex. B, pp. 93-95. It governs removals and suspensions other than those arising from discrimination based on race, color, sex, religion or national origin. A claim of discriminatory discharge can also be the subject of an adverse action appeal. But a complainant cannot travel the EEO and the 752-B appellate avenues at the same time. 5 C.F.R. §§ 713.231(b); 713.236. The Government contends that Rozier deliberately chose to pursue his right of appeal through FEAA rather than the Appeals Review Board under § 713.

(e) On November 13, 1975, Rozier was informed by the Office of General Counsel, Veterans Administration, that the statute and regulations require an aggrieved employee to contact an EEO Counselor within 30 days of the alleged discriminatory act. Because the evidence showed that he had not brought the matter to the attention of the Counselor within such period, the discrimination complaint was dismissed. Gov't. Ex. A, pp. 25-26. From that ruling Mr. Rozier appealed to the Civil Service Appeals Board.

(f) On or about November 18, 1975, an extensive evidentiary hearing was held before an Appeals Officer of the Civil Service Commission in the matter of the adverse action appeal. The primary issue was Rozier's removal as Nursing Assistant on the basis of patient abuse. However, the contention that it was racially motivated was also in issue. The Appeals Officer so framed the issue before him. Rozier's attorney concurred. Gov't. Ex. C, pp. 1-2. Five witnesses testified. Mr. Rozier's counsel repeatedly injected the claim of a racial basis for the discharge, namely, the theory that Rozier's militancy and his leadership of black employees at the Center were the real causes of his termination. See Gov't. Ex. C, pp. 8, 10, 35-36, 72-74, 89.

(g) On December 30, 1975, the Appeals Authority of the Civil Service Commission rendered a decision in the adverse action appeal affirming the removal of Rozier. The Appeals Officer concluded that the "reasons for the action are supported by a preponderance of the evidence; that the removal action was for such cause as will promote the efficiency of the service; that there is no evidence to support the allegation that the removal was due to discrimination against the appellant because of his race; and that the removal was not arbitrary, unreasonable, or capricious." Gov't. Ex. A, pp. 2-10.⁶ The decision dealt with the matter of racial...