Salazar v. Heckler, 84-2640

Decision Date27 March 1986
Docket NumberNo. 84-2640,84-2640
Citation787 F.2d 527
Parties40 Fair Empl.Prac.Cas. 721, 39 Empl. Prac. Dec. P 36,040, 54 USLW 2547 Michael J. SALAZAR, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Sylvian R. Roybal, Denver, Colo., for plaintiff-appellant.

James R. Cage, Asst. U.S. Atty., Denver, Colo., (Robert N. Miller, U.S. Atty., Denver, Colo., and Ronald S. Luedemann, Regional Atty., Jay A. Swope and Mary Lee Bartman, Asst. Regional Attys., Dept. of Health and Human Services, Denver, Colo.,) for defendant-appellee.

Before HOLLOWAY, Chief Judge, SEYMOUR, Circuit Judge and BOHANON, Senior District Judge. *

BOHANON, District Judge.

Michael Salazar appeals from the final order of dismissal entered by the United States District Court for the District of Colorado in this case involving alleged employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. Secs. 2000e et seq. We affirm.

From 1965 to 1969, Salazar served on active duty as a full grade (0-4) Commissioned Officer in the United States Public Health Service Commissioned Corps (hereinafter "PHS" or "the Corps"). In the midst of this period, in 1967, Salazar was stationed in Alabama but was temporarily assigned to Houston, Texas. While in Houston, Salazar got into a conflict with the Houston Project Officer which Salazar claims involved elements of bias against his ethnic background (Hispanic). Salazar was immediately transferred back to Alabama and shortly thereafter was assigned to a project in Puerto Rico which he preferred to the Houston project at that time. He claims, however, that as a result of the Houston incident certain negative performance evaluations were placed in his personnel file without his knowledge.

In 1969 the project Salazar was working on was terminated and his commission in the Corps was inactivated. He continued, however, as a Reserve Commissioned Officer. In 1975 Salazar, who by then was employed by the Environmental Protection Agency (EPA) in Denver, Colorado, sought, with the approval of his EPA supervisors, to have his commission in the Corps reactivated and to be permanently assigned by PHS to the EPA in Denver. In May of 1976 this request was denied and Salazar upon inquiry determined that the denial was based in part on the negative performance evaluations arising out of the Houston incident some nine years previous.

Eventually Salazar made an employment discrimination complaint to the PHS Office of Equal Employment Opportunity. When his complaint was rejected by that agency, he appealed to the Equal Employment Opportunity Commission (EEOC). The EEOC, without making any findings as to its jurisdiction over the matter, entered a final decision affirming the PHS action. Upon Salazar's request to reopen and reconsider his case, the EEOC entered a decision admitting certain factual errors in its previous decision but denying the request to reopen on other grounds. Salazar then filed this action in the district court.

The order appealed from incorporates by reference the oral conclusions of the court made at the end of a hearing on the government's Motion to Dismiss or in the Alternative Motion for Summary Judgment. The transcript of that hearing clearly indicates that the court considered the motion as one for summary judgment and that the court granted summary judgment to the government on two bases: 1) The original conduct complained of by Salazar, that is, the placement in his PHS personnel file of negative performance evaluations arising out of unlawful discrimination, occurred in 1967, before the 1972 Amendments which made Title VII applicable to federal employees. The trial court held that the 1972 Amendments could not be retroactively applied to provide Salazar a remedy for the actions in 1967. 2) With respect to Salazar's further claim that the evaluations placed in his personnel file in 1967 caused him additional injury in 1976, the trial court upheld an EEOC finding that Salazar did not bring his problem to the attention of an Equal Employment Opportunity Counselor of the affected agency, PHS, within the time limits prescribed by the governing regulations. Without addressing the correctness of the district court's ruling with regard to these two issues, we affirm its dismissal of Salazar's Title VII claim, albeit on a different basis pressed by the government both before the district court and on appeal.

Salazar's complaint asserted 28 U.S.C. Sec. 1343(a)(4) as the basis for exercise of jurisdiction over his claim by the district court. Section 1343(a)(4) provides: "The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person ... [t]o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights...." This language does not by itself include any waiver of the sovereign immunity of the United States. Beale v Blount, 461 F.2d 1133 (5th Cir.1972); Blaze v. Moon, 440 F.2d 1348 (5th Cir.1971); Garcia v. United States, 538 F.Supp. 814 (S.D.Tex.1982); Service Arms Co. v. U.S. Treasury Dept. Alcohol, Tobacco and Firearms, 416 F.Supp. 2 (W.D.Okla.1975). When federal court jurisdiction is invoked pursuant to this statute, we must look to the specific "Act of Congress providing for the protection of civil rights" invoked to determine whether that Act by its terms expresses Congress' consent to suits against the United States by persons in the plaintiff's position.

Salazar asserts that his action is authorized by Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 and the Reorganization Plan No. 1 of 1978, 42 U.S.C. Secs. 2000e et seq. (1982). The portions of that statute pertinent to our discussion are found in Sec. 717, codified at 42 U.S.C. Sec. 2000e-16:

(a) All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5, in executive agencies as defined in section 105 of Title 5 (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.

* * *

(c) Within thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Equal Employment Opportunity Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency or unit or with the Equal Employment Opportunity Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.

Subsection (c) is a clear expression of consent to suits against the United States by persons covered by subsection (a). Carreathers v. Alexander, 587 F.2d 1046, 1051 (10th Cir.1978); McNutt v. Hills, 426 F.Supp. 990 (D.D.C.1977); cf. Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) (Sec. 717 intended by Congress to remedy pre-enactment situation wherein many courts held judicial relief from federal employment discrimination barred by sovereign immunity); Staff of Subcommittee on Labor of Senate Committee on Labor and Public Welfare, 92nd Cong., 2nd Sess., U.S.Code Cong. & Admin.News 1972, p. 2137, Legislative History of Equal Employment Opportunity Act of 1972 (H.R. 1746, PL 92-261) amending Title VII of Civil Rights Act of 1964, 1744 (Comm.Print 1972) (hereinafter "Senate Comm.Print "). The government asserts in this suit, however, that Sec. 717 does not apply to positions in the Commissioned Corps of the Public Health Service, and thus does not apply to Salazar with respect to any personnel action affecting him in his capacity as an active member of the commissioned Regular Corps prior to 1970 or with respect to his request to be returned to active duty from his status as a commissioned officer in the Reserve Corps in 1975.

The government's position has much to commend it.

We note first of all that it has been held that Sec. 717 does not afford protection "to the uniformed personnel of the various armed services." Johnson v. Alexander, 572 F.2d 1219, 1224 (8th Cir.1978); Gonzalez v. Department of Army, 718 F.2d 926, 929 (9th Cir.1983). These cases observe that although Sec. 717(a) makes specific reference to the "military departments as defined in section 102 of Title 5," these departments include great numbers of civilian employees, as well as uniformed military personnel. The definitions of "military departments" and "armed forces" contained in the United States Code, as well as the legislative history of the 1972 Amendments to Title VII, compel the view "that the term 'military...

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