Salone v. U.S.

• Decision Date: 21 February 1975
• Docket Number: No. 74--1475,74--1475
• Citation: 511 F.2d 902
• Parties: 10 Fair Empl.Prac.Cas. 1, 9 Empl. Prac. Dec. P 9967 Anthony M. SALONE, Jr., Appellant, v. UNITED STATES of America et al., Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 902

511 F.2d 902

10 Fair Empl.Prac.Cas. 1, 9 Empl. Prac. Dec. P 9967

Anthony M. SALONE, Jr., Appellant, v. UNITED STATES of America et al., Appellees.

No. 74--1475.

United States Court of Appeals, Tenth Circuit.

Feb. 21, 1975.

Robert B. Smith, of Miskovsky, Sullivan & Miskovsky, Oklahoma City, Okl., for appellant.

William R. Burkett, U.S. Atty., and John E. Green, Asst. U.S. Atty., for appellees.

Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.

SETH, Circuit Judge.

Appellant Salone is a civilian employee at the Oklahoma City Air Materiel Area (OCAMA), Tinker Air Force Base, Oklahoma. In April 1972, Salone complained to the Commander of Tinker AFB that his supervisors were discriminating against him because of his race, and in reprisal for a discrimination complaint filed by him some five years previously. This complaint was referred to the agency's Chief EEO Counselor who interviewed Salone and the witnesses and made recommendations. Further complaints, hearings, and recommendations followed, and in March 1973 Salone was notified by the Director of Equal Employment Opportunity, Office of the Secretary of the Air Force, that his allegations of racial discrimination were not supported by the record. The decision of the Director was affirmed without comment by the Civil Service Commission Board of Appeals and Review.

Having exhausted his administrative remedies through the Civil Service machinery, Salone filed this action in the District Court pursuant to 42 U.S.C. §§ 2000e--16 and 2000e--5. He requested a trial de novo on his allegations of discrimination, rather than a review of the administrative record. Defendant filed a motion for summary judgment and asking that the action be dismissed for lack of subject matter jurisdiction.

The trial judge found that review of the administrative record was the procedure required, and that the record showed an absence of discrimination. He then granted the motion for summary judgment, and further found an absence of subject matter jurisdiction.

The only issue presented on this appeal is whether a federal employee filing a civil action under 42 U.S.C. § 2000e--16 is entitled to a trial de novo or judicial review of the administrative record. The statute is silent on this question. 42 U.S.C. § 2000e--16(c) provides that a federal employee who has a complaint of discrimination based on race, color, religion, or sex may, within certain time limits, 'file a civil action as provided in section 2000e--5 of this title.' Section 2000e--5 governs civil actions by private employees. 42 U.S.C. § 2000e--16(d) reads: 'The provisions of section 2000e--5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder.'

There is no dispute that a private employee filing an action pursuant to 42 U.S.C. §§ 2000e--5(f) through (k) is entitled to a trial de novo. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Two early cases applied this holding to actions under 42 U.S.C. § 2000e--16(c) and concluded that the 1972 amendment to the Equal Employment Opportunity Act was intended to extent to federal employees the same procedure that was available to private employees, and thus a federal employee should be entitled to a trial de novo rather than judicial review of the administrative record. Henderson v. Defense Contract Administration Services Region, New York, 370 F.Supp. 180 (S.D.N.Y.); Thompson v. United States Dep't of Justice, Bureau of Narcotics & Dangerous Drugs, 360 F.Supp. 255 (N.D.Cal.).

A separate line of cases also developed which maintained a distinction between private and federal employees. These cases relied on decisions concerning discharge of federal employees. In such actions, brought under 5 U.S.C. § 701 et seq., a federal employee is entitled only to review by the federal district court of the administrative record. Trials de novo are not provided. Polcover v. Secretary of Treasury, 477 F.2d 1223 (D.C.Cir.), cert. denied, 414 U.S. 1001, 94 S.Ct. 356, 38 L.Ed.2d 237; Rosenman v. Levbarg, 435 F.2d 1286 (3d Cir.); Dabney v. Freeman, 358 F.2d 533 (D.C.Cir.); Gordon v. Bright, 306 F.Supp. 252 (W.D.Okla.), aff'd 419 F.2d 835, cert. denied, 397 U.S. 1057, 90 S.Ct. 1403, 25 L.Ed.2d 674.

In Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.), the court considered the question whether a federal employee is entitled to a trial de novo after being unsuccessful in administrative agency proceedings on a complaint of employment discrimination. The court considered the history of the 1972 Equal Employment Opportunity Act, the potential burden on the federal judiciary, duplication of the administrative process, prior federal employee discharge cases, and the need for prompt, consistent decisions in discrimination matters, and said: 'Viewing the Act and its history broadly, Congress intended to guarantee access to the courts--'a civil action'--to eliminate previous barriers but not to start the process anew.' Thus the court concluded that the Act provided for 'access' but once there a trial de novo was not required under 42 U.S.C. § 2000e--16.

The holding in Hackley was followed in Tomlin v. United States Air Force Medical Center, 369 F.Supp. 353 (S.D.Ohio), and Handy v. Gayler, 364...