Siegel v. Kreps, 77-1549
| Decision Date | 13 April 1981 |
| Docket Number | No. 77-1549,77-1549 |
| Citation | 654 F.2d 773 |
| Parties | 25 Fair Empl.Prac.Cas. 672, 25 Empl. Prac. Dec. P 31,718, 210 U.S.App.D.C. 58 Stanley SIEGEL, Appellant, v. Juanita M. KREPS, Individually and as Secretary of the United States Department of Commerce, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 75-2152).
Christopher Fager, Washington, D. C., with whom Laurence Singer, Washington, D. C., was on the brief for appellant.
Norman M. Monhait, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Peter E. George, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.
Before ROBINSON and MacKINNON, Circuit Judges, and HAROLD GREENE *, United States District Judge for the District of Columbia.
Opinion for the Court filed by District Judge HAROLD H. GREENE.
This is an appeal from the dismissal of an action brought by a federal employee alleging age discrimination, religious discrimination, and retaliatory discharge. Although the administrative history of this case is somewhat involved, the law is clear.
On December 24, 1975, appellant Stanley H. Siegel, an employee of the United States Bureau of the Census, instituted this action against the Secretary of Commerce, the Director of the Bureau of the Census, and the United States, alleging employment discrimination and wrongful discharge. The first count of the complaint alleged nonselection for training programs, allegedly on account of religion and age in violation of the Age Discrimination in Employment Act of 1967, 1 Title VII of the Civil Rights Act of 1964, 2 and the First Amendment to the Constitution. The second count alleged that appellant's then pending discharge from federal employment was due to his religion and age and in retaliation for an age discrimination complaint which he had previously filed, in violation of the Age Discrimination in Employment Act, the Administrative Procedure Act, 3 and the First and Fifth Amendments.
After limited discovery, appellees filed a motion to dismiss the Title VII claims on various grounds. These included the contention that with respect to some of his claims appellant had not filed a formal administrative complaint; that with respect to others he had not complied with requisite time limits for filing or provided notice of his intent to sue; and that still another claim arose prior to the effective date of the relevant statute. 4
The District Court, treating the motion to dismiss as a motion for partial summary judgment (F.R.Civ.P. 54(b)), dismissed the complaint with respect to the alleged denial of training due to appellant's religion and the allegations that appellant's discharge was retaliatory and discriminatory. 5 This appeal followed.
Appellant, who is of the Jewish faith, began employment with the Department of Commerce, Bureau of the Census, in December, 1968, as an electronics technician in grade GS-5. On September 24, 1970, he filed an administrative equal employment opportunity complaint alleging that he had been discriminatorily denied promotion and training opportunities because of his religion. Final agency action on his complaint, by the issuance of a Board of Appeals and Review decision upholding an earlier finding of no discrimination, occurred on August 10, 1971. Appellant instituted no other administrative proceedings alleging religious discrimination at any time thereafter.
In the Spring of 1974, appellant discussed with one Leverne Brugger of the Complaints Section of the Civil Service Commission his complaint that he was still being denied training opportunities on religious grounds. Brugger took him to see Paul Cerwonka, a supervisory appeals examiner for the Civil Service Commission Board of Appeals and Review.
The events of the meeting between appellant and Cerwonka are the subject of some dispute. According to appellant, he told Cerwonka that he wished to file a complaint based upon religious discrimination. In response, Cerwonka allegedly informed him that he had exhausted his administrative remedies with respect to religious discrimination in 1971; that a complaint was now foreclosed; and that he was limited to a complaint based on alleged age discrimination. Cerwonka, on the other hand, stated both by way of an affidavit and in oral testimony at the hearing on the motion that he does not remember conferring with appellant; that his responsibility at the time was to consider the review of agency decisions in discrimination cases rather than to deal with new complaints; and that his practice was to refer a person who wished to initiate a complaint to that person's agency or to the Office of Federal Equal Employment Opportunity for proper counselling in that regard. Cerwonka conceded that he might have advised appellant that his remedies with respect to his 1970 complaint had been exhausted, but he claimed to be certain that he would not have told appellant that a complaint based on recent religious discrimination was unavailable to him.
Shortly thereafter, on April 22, 1974, appellant filed an administrative complaint alleging that he was being denied training opportunities because of his age, but on July 1, 1975, he was informed that the complaint was rejected for lack of evidence. Appellant appealed that decision to the Civil Service Commission, and while that appeal was pending, 6 he filed the civil action which is before us on appeal.
Also during the pendency of the administrative proceedings involving the alleged denial of training opportunities, appellant met several times with his supervisors to discuss his training problem. Appellant had previously been warned that should he repeat acts of misconduct in which he had engaged from time to time in the past 7 he might be removed from the federal service. During one of the meetings with his supervisors he apparently again engaged in offensive and abusive conduct, and on November 21, 1974, he was informed by the Bureau of the Census that his federal employment would be terminated.
An appeal from the removal action was taken to the Federal Employee Appeals Authority of the Civil Service Commission. That appeal was limited to two claims that the removal was flawed by procedural defects and that the action constituted retaliation for his previous complaints against the agency. The Appeals Authority denied the appeal in a final decision dated October 14, 1975, which rejected his contentions and substantively found that he had engaged in various acts of misconduct.
Although the complaint in the court below raised several other issues (see note 5, supra ), the only questions remaining here relate to appellant's claim of religious discrimination with respect to the denial of training opportunities, and his claims that his discharge was the product of retaliation and of religious and age discrimination.
Title VII of the Civil Rights Act of 1964 requires the exhaustion of certain administrative remedies as a prerequisite to a court action to remedy alleged racial, sexual, or religious discrimination. The principal exhaustion requirement is that the complainant must initially seek relief in the agency which has allegedly discriminated against him. Brown v. General Services Administration, 425 U.S. 820, 831, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976).
Appellant failed to pursue any of the administrative remedies available to him with respect to the claim that in 1974 he was denied training because of religious discrimination. After the agency denied relief on his 1970 religious discrimination complaint he filed no further complaints with anyone alleging religious discrimination in connection with training denials, whether during that year 8 or at any time thereafter. Indeed, that issue was raised for the first time in this civil action. Thus, on the basis of the plain words of the statute 9 and under the regulations, 10 the action in the court below was subject to dismissal.
Appellant claims that he was given erroneous advice by Cerwonka, and that but for that advice he would have filed a timely complaint with the agency. At a minimum, it is claimed, there is a disputed issue of fact on the Cerwonka issue and consequently on the question of whether his untimely filing should be excused on account of equitable considerations. There are several flaws in that argument.
Exhaustion of administrative remedies has generally been regarded as a prerequisite to the maintenance of a federal employee's Title VII discrimination suit, and absent special circumstances, failure to exhaust calls for a dismissal of the action. League of United Latin American Citizens v. Hampton, 163 U.S.App.D.C. 283, 501 F.2d 843 (1974); Jordan v. United States, 522 F.2d 1128, 1132 (8th Cir. 1975); Spencer v. Schlesinger, 374 F.Supp. 840, 843-844 (D.D.C.1974). Appellant relies on such decisions as Coles v. Penny, 174 U.S.App.D.C. 277, 531 F.2d 609 (D.C.Cir.1976); Bell v. Brown, 181 U.S.App.D.C. 226, 557 F.2d 849 (1977); and Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C. 322, 567 F.2d 429 (1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978), to support his contention that his failure to exhaust does not compel dismissal. However, these cases involved only the question whether the time limitations 11 of the statute and the regulations may be waived on account of equitable considerations. Appellant's lawsuit is defective not because he failed to file on a timely basis but because he failed to exhaust or even to begin his administrative remedies. 12
The contention that a timely administrative complaint was not filed due to advice from Cerwonka does not help appellant. The District Court...
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