Stephenson v. Simon, Civ. A. No. 75-1694.

• Citation: 427 F. Supp. 467
• Decision Date: 12 November 1976
• Docket Number: Civ. A. No. 75-1694.
• Parties: Martha O. STEPHENSON, Plaintiff, v. William E. SIMON et al., Defendants.
• Court: U.S. District Court — District of Columbia

427 F. Supp. 467

Martha O. STEPHENSON, Plaintiff, v. William E. SIMON et al., Defendants.

Civ. A. No. 75-1694.

United States District Court, District of Columbia.

November 12, 1976.

Robert M. Tobias, Michael E. Goldman, Washington, D. C., for plaintiff.

Earl J. Silbert, U. S. Atty., Robert N. Ford, John R. Dugan, Asst. U. S. Attys., Washington, D. C., for defendants.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

This case, brought pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (EEOA), 42 U.S.C. §§ 2000e et seq., is before the Court on cross-motions for summary judgment. In addition, defendants have moved to dismiss the complaint insofar as it states claims against persons other than Secretary of the Treasury William Simon, and insofar as it seeks relief for alleged discriminatory acts occurring prior to the effective date of the EEOA.

The following facts are undisputed: The plaintiff, Martha O. Stephenson, is female and is employed as a GS-11 chemist for the Bureau of Alcohol, Tobacco and Firearms ATF of the United States Department of the Treasury in Cincinnati, Ohio. On December 12, 1973, plaintiff filed a formal complaint of sex discrimination against her supervisor, Frank J. Feeney, who is Chief of the Laboratory Branch of the Central Region of ATF. The complaint alleged that she had been denied opportunities for promotion because she is female.

The formal complaint was investigated and, when informal attempts to resolve the complaint proved unsuccessful, Civil Service Commission CSC Complaints Examiner Phillip N. Miller was appointed to conduct a hearing. The hearing was held on June 5th and 6th, 1975, and the Complaints Examiner's findings and recommendations were issued on August 20, 1975. The summary of these findings states:

Based on the evidence of record, it is herein found that complainant was treated differently than the male chemists in the ATF Cincinnati laboratory in that she was not afforded overtime as they were; in that she was not given safety awards as they were; in that she was never designated acting chief in the absence of Mr. Feeney as were male GS-11 chemists; in that she was not afforded equal opportunity to attend training sessions; and in that she received a less favorable evaluation from Mr. Feeney in 1973. The evidence further supports, and it is so found, that Mr. Feeney discriminated against complainant in his day to day treatment of her such as in the assignment of duties and general communication with her. In consideration of the various reasons given for Mr. Feeney's treatment of complainant, the only basis supported with substantial evidence is complainant's sex. Accordingly, it is concluded that Mr. Feeney discriminated against complainant in each of the above matters that way because of her sex. The actions of Mr. Feeney from the time of his appointment as Chief until the . . . selection of Mr. McOwen for the GS-12 chemists position would undoubtedly have prejudiced complainant's opportunity for equal consideration in promotion actions. However, the evidence does not show that she would have been selected but for prohibited discrimination. Complainant was one of four highly qualified candidates considered by Mr. Murrell before making his selection. The record indicates that she had neither the educational background nor the years of experience had by Mr. McOwen . ..

(Exhibit 2, at 18-19).

The decision recommended by the Complaints Examiner was as follows:

It is recommended that the agency issue a final decision finding that the complainant was subjected to a continuing series of discriminatory acts because of her sex, but that the evidence does not support her contention that she would have been promoted in either 1971 or 1973 but for prohibited discrimination.

(Exhibit 2, at 19-20).

The Complaints Examiner then recommended the following corrective action:

It is hereby recommended that the agency determine the approximate number of hours overtime provided male chemists in conjunction sic with the cleaning of the laboratory and that the complainant be afforded the opportunity to work sufficient overtime to substantially equalize the record in this respect; that the agency develop and issue written guidelines for the granting of safety awards; and that a program be developed for complainant, involving formal training to provide her with experience comparable to that of the male chemists. Also it is recommended that complainant be given priority consideration for promotion to a GS-12 Chemists position if and when a further vacancy develops.

It is further recommended that the record of the instant complaint be carefully reviewed by the agency to determine if any disciplinary action is warranted; that Mr. Feeney be given special sensitivity training in EEO matters; that he be admonished to cease discriminating against complainant; and that all future evaluations by Mr. Feeney be reviewed by a higher authority to determine if they accurately reflect the level of her competence in relation to that of the other chemists.

(Exhibit 2, at 20-21).

In a letter dated September 23, 1975, Mr. David A. Sawyer, Director, Equal Employment Opportunity Program, Department of the Treasury, accepted in full the findings of the Complaints Examiner and adopted most, and perhaps all, of the recommendations for corrective action.¹ The Department of the Treasury did not, however, make any provisions for granting plaintiff back pay and retroactive promotion. As a result, plaintiff has filed this suit seeking both back pay and retroactive promotion.

I. Defendants' Motion to Dismiss as to All Defendants Other than Secretary Simon.

A preliminary issue that must be addressed is presented by defendants' motion to dismiss the complaint as to defendants Rex Davis, Fred R. Murrell, and Frank J. Feeney.² Defendants contend that the only proper defendant in an action under 42 U.S.C. § 2000e-16 involving an Executive department is the head of that department — here, William Simon, who is Secretary of the Department of the Treasury.

Section 2000e-16(c) of Title 42 states that in civil actions by a federal employee or an applicant for federal employment to enforce rights under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, "the head of the department, agency, or unit, as appropriate, shall be the defendant." In order to evaluate defendants' interpretation of this provision, it is necessary to look to the other subsections of § 2000e-16 to determine the meanings of the terms "department," "agency," and "unit." Even a cursory reading of the entire section reveals that the definitions of these terms in subsection (a) of § 2000e-16 were clearly intended by Congress to be incorporated in subsection (c). Thus, the term "department" means "military departments as defined in section 102 of Title 5," "agency" means "executive agencies . . as defined in section 105 of Title 5," and "unit" means "those units of the Government of the District of Columbia having positions in the competitive service, and . . . those units of the legislative and judicial branches of the Federal Government having positions in the competitive service."³ These definitions indicate that no argument can be made that ATF or its subdivisions are either a "department" or a "unit" within the meaning of the statute. Thus, only if they are an "agency" within the meaning of the statute can their directors or chiefs be properly joined as defendants.

The definition of "executive agencies" as provided in 5 U.S.C. § 105 (1970), and as incorporated in § 2000e-16, is "an Executive Department, a Government corporation, or an independent establishment." Again, it is necessary to look to other statutory sections for definitions of the component terms of § 105. Since ATF and its subdivisions are clearly not Government corporations, only the definitions of "Executive department" and "independent establishment" require examination. Section 101 of 5 U.S.C. (1970), defines "Executive department" by listing the 11 Cabinet-level departments, of which the Department of the Treasury is one. Clearly, ATF cannot qualify under this term. Section 104 of 5 U.S.C. (1970), defines "independent establishment" as "an establishment in the executive branch . . . which is not an Executive department, military department, Government corporation, or part thereof . . .." (Emphasis added.) Since ATF is a part of the Department of the Treasury, an Executive department, it is not itself an "independent establishment." Thus, the Court concludes that neither ATF nor its subdivisions are a "department, agency, or unit" within the meaning of § 2000e-16, and, accordingly, the defendants who are the heads of ATF and its subdivisions are not proper defendants in this case.

Although this issue has not been faced by many courts, three courts have ruled, though without detailed analysis of the statutory terms "department," "agency," and "unit," that defendants in positions analogous to those of defendants Davis, Murrell, and Feeney were not proper defendants to a Title VII action by a federal employee (or an applicant for federal employment). In Williams v. Mumford, 6 FEP Cases 483, 487 (D.D.C.1973), Judge Jones of this District held that the director of personnel at the Library of Congress was not a proper defendant. Similarly, in Jones v. Brennan, 401 F.Supp. 622, 627 (N.D.Ga. 1975), Judge Moye held that the Regional Manpower Administrator of the Manpower Administration for Region IV of the Department of Labor was not a proper defendant. Finally, the Court of Appeals for this Circuit, in Hackley v. Roudebush, 171 U.S.App.D.C. 376, 520 F.2d 108, 115 n. 17 (1975), concluded that the Director of the Investigation and Social Security Division of the Veterans Administration, his assistant, and the Assistant Administrator of the VA for Management and...