Stoller v. Marsh

• Decision Date: 22 June 1982
• Docket Number: No. 81-1721,81-1721
• Citation: 221 U.S.App.D.C. 22,682 F.2d 971
• Parties: 29 Fair Empl.Prac.Cas. 85, 29 Empl. Prac. Dec. P 32,847, 221 U.S.App.D.C. 22 Jack C. STOLLER, Appellant, v. John O. MARSH, Jr., Secretary of the Army.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 971

682 F.2d 971

29 Fair Empl.Prac.Cas. 85, 29 Empl. Prac.

Dec. P 32,847,

221 U.S.App.D.C. 22

Jack C. STOLLER, Appellant, v. John O. MARSH, Jr., Secretary of the Army.

No. 81-1721.

United States Court of Appeals District of Columbia Circuit.

Argued March 24, 1982.

Decided June 22, 1982.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-01032).

Roy Tesler, Washington, D. C., for appellant.

Alice Patricia Frohman, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, and Kenneth M. Raisler, Royce C. Lamberth and Michael J. Ryan, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. Scott T. Kragie, Asst. U. S. Atty., Washington, D. C., entered an appearance for appellee.

Before WRIGHT and EDWARDS, Circuit Judges, and BAZELON, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

In this Title VII action the District Court granted summary judgment in favor of defendant Marsh, Secretary of the Army, on each of plaintiff Stoller's four claims. We affirm the District Court's judgment on Stoller's first three claims, based on separate personnel actions in 1968, 1969, and 1971, because the court lacked subject matter jurisdiction over these pre-1972 actions by the federal government. Summary judgment was improper, however, on Stoller's fourth claim, arising from the Army's failure to promote him in 1972. Genuine issues of material fact remain unresolved and the government was not entitled to judgment as a matter of law. An unfavorable employment decision resulting from inaccurate, discriminatorily-motivated evaluations by the employee's supervisors violates Title VII, unless the employee previously had a reasonable opportunity to inspect the personnel file and have the evaluations corrected. We therefore reverse and remand for further proceedings on the 1972 claim.

I

From March 1967 to April 1968, Jack Stoller served in Saigon, Republic of Vietnam, as a civilian personnel management specialist (GS-11) in the Department of the Army. He asserts that during his period of service in Vietnam he suffered harassment and unequal treatment but did not then realize that these episodes were anti-Semitic. In 1968, after one year in Vietnam, Stoller was reassigned to the United States, although he desired to remain overseas in order to obtain higher pay and benefits. He contends that he was entitled to a five-year tour of overseas duty, but that his superiors arranged for his transfer for discriminatory reasons. Stoller's superiors reported that he was unable to work harmoniously with Vietnamese people. Joint Appendix (JA) 27. Stoller asserts that this report was false.

In January 1969 Stoller applied for overseas employment within the Department of the Army. His application was denied. In 1971 the Career Screening Panel reviewed Stoller's record, along with the records of more than 800 other civilian personnel, and placed him in a deferred category on the ground that he was ineligible for promotion. Stoller was informed of this decision in May 1972. He did not file any administrative charges of discrimination after the 1968 reassignment, the 1969 denial of overseas employment, or the 1971 Career Screening Panel decision. ¹

Subsequently the 1972 Career Screening Panel placed Stoller in the promotable category for positions in his field of specialty. The panel did not, however, recommend him for promotion. Within 30 days after he was informed of the panel's decision in May 1973, Stoller initiated administrative proceedings under Title VII. He sought redress not only for the 1972 screening panel's decision but also for the three pre-1972 personnel actions.

The administrative proceedings continued from 1973 to 1978. After a lengthy investigation, the Civil Service Commission complaints examiner found that, although there was an "atmosphere of discrimination" during Stoller's period of service in Vietnam, the Army had not discriminated against him in violation of Title VII. That decision was affirmed by the Appeals Review Board in May 1978. Stoller filed this lawsuit in the District Court within 30 days after the review board's decision.

Stoller alleged that the Army had violated Title VII by discriminating against him on the basis of his "religion (Jewish) and national origin (semite) (.)" His complaint asserted that the Army "has discriminated and is continuing to discriminate against the Plaintiff in each of the following ways": (1) the 1968 refusal to allow him to "complete his normal tour in Vietnam"; (2) the denial of his application in 1969 for another overseas assignment; (3) the 1971 panel's decision that he was ineligible for promotion; and (4) the 1972 panel's restriction of his promotional opportunities. Complaint at 3. In opposition to the government's motion to dismiss, he contended that these four actions formed part of a pattern of "continuing discrimination" which began in Vietnam in 1968. He alleged that his Army superiors in Saigon, motivated by religious discrimination, improperly arranged for his reassignment to the United States after one year of duty and that, to justify this action, they manufactured a personnel file falsely asserting that he was unable to get along with Vietnamese people. This "secret file," he asserts, caused the subsequent adverse decisions in 1969, 1971, and 1972.

The District Court granted summary judgment for the government on all of Stoller's claims. With respect to the first three government actions, the court held that Stoller had failed to file timely administrative claims, even though the record showed that he was aware of the alleged discrimination. In the alternative the court held that it lacked jurisdiction over claims against the federal government based on acts prior to the effective date of the 1972 amendments to Title VII. JA 13-14. The District Court also held that the 1972 screening panel's decision did not violate Title VII. In the court's view, Stoller was not complaining of a "present violation" by the 1972 panel; rather he was asserting that the panel failed to promote him "because of his past employment history." Relying on United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), it concluded that Stoller could not prevail on his fourth claim. JA 14-16.

II

A. Pre-1972 Government Actions

The District Court granted summary judgment for the government on Stoller's three pre-1972 claims on the ground that he had failed to pursue administrative remedies in a timely manner. Stoller conceded that, until 1973, he did not file administrative charges regarding any of the pre-1972 government actions-reassignment to the United States in 1968, denial in 1969 of his application to work overseas, and placement by the 1971 screening panel in a deferred category. He claimed, however, that until May 1973 he did not suspect that his previous treatment had resulted from religious discrimination, and that the investigation uncovered episodes of discrimination of which he had not been aware. Statement of Points and Authorities in Opposition to Defendant's Motion to Dismiss at 4, 6-7 (hereinafter Opposition to Motion to Dismiss). Therefore, he maintains, the time limits were subject to equitable tolling.

Under Title VII, if an employee did not at the time know or have reason to know that an employment decision was discriminatory in nature, the time limits for filing an administrative complaint may be tolled. ² See Cooper v. Bell, 628 F.2d 1208, 1212 (9th Cir. 1980); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 474 (D.C.Cir.1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975). But in this case the District Court concluded that "the record demonstrates that the plaintiff was aware of the alleged discriminatory acts and could have filed timely claims. Thus, any argument that the time to file was tolled is also without merit." JA 14. We need not decide whether, at the summary judgment stage, the District Court properly concluded that there was no genuine issue of material fact about Stoller's knowledge of the alleged discrimination against him. We affirm the District Court's dismissal of the pre-1972 claims on jurisdictional grounds.

The 1972 amendments to Title VII, extending the statute's coverage to federal government employees, do not apply retroactively to discrimination prior to March 24, 1972, with the exception of two categories of cases. Brown v. Turner, 659 F.2d 1199, 1202 (D.C.Cir.1981). Pre-1972 claims against the federal government are covered if a complaint was pending on the effective date of the Act, Grubbs v. Butz, 514 F.2d 1323, 1327 (D.C.Cir.1975); Womack v. Lynn, 504 F.2d 267 (D.C.Cir.1974), or if a continuing violation began before that date but extended after it, Thompson v. Sawyer, 678 F.2d 257, 289 (D.C.Cir.1982); Bethel v. Jefferson, 589 F.2d 631, 636-637 (D.C.Cir.1978). Under these settled principles, the District Court lacked subject matter jurisdiction over Stoller's first three claims.

On March 24, 1972 no administrative proceedings were pending with regard to any claims of discrimination brought by Stoller. His complaint in the District Court alleged in a conclusory fashion that the Department of the Army "has discriminated and is continuing to discriminate against the Plaintiff" and recited the government's actions in 1968, 1969, 1971, and 1972. Subsequently Stoller's memorandum in opposition to the government's motion to dismiss attempted to set forth a theory of continuing violation. He contends that, to cover up the allegedly discriminatory and procedurally irregular decision to reassign him to the United States after one year in Vietnam, his superiors created a "secret file" which was subsequently used...