Turner v. Orr

• Decision Date: 25 November 1986
• Docket Number: No. 86-3008,86-3008
• Parties: 42 Fair Empl.Prac.Cas. 581, 41 Empl. Prac. Dec. P 36,680 William C. TURNER, et al., Plaintiffs, v. Verne ORR, Secretary of the Air Force, et al., Defendants-Appellees, Jack Bess, Claimant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1223

804 F.2d 1223

42 Fair Empl.Prac.Cas. 581,

41 Empl. Prac. Dec. P 36,680

William C. TURNER, et al., Plaintiffs, v. Verne ORR, Secretary of the Air Force, et al., Defendants-Appellees Jack Bess, Claimant-Appellant.

No. 86-3008

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Nov. 25, 1986.

Major Jay L. Cohen, Head quarters U.S. Air Force, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Florida.

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

PER CURIAM:

On January 12, 1981, the district court approved a consent judgment in a class action suit brought by civilian employees at Eglin Air Force Base (Eglin) against the Air Force under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. The consent judgment settled the class members' claims of racial discrimination in hiring and promotion at Eglin. Pursuant to the consent decree, Jack Bess filed a complaint alleging that he was the victim of intentional racial discrimination in promotion. After a two day hearing, a special master found no discrimination in the filling of three electronics positions but found racial discrimination in the March 21, 1982 selection of another employee, Davis Gardner, for a GS-14 electronics position (Gardner position). The district court affirmed the special master's three findings of no discrimination. The district court, however, overruled the special master concerning the Gardner position on the grounds that Bess had failed to file a timely complaint about this position. Bess appeals the ruling that his complaint about the Gardner position was untimely.

The district court ruled that Bess had failed to comply with the notification provisions of the 1981 consent judgment. The consent judgment established an alternate complaint process for class members. ¹ Section IX of the consent judgment provided that a class member proceeding under these alternative procedures first was required to "contact the plaintiff's monitoring committee." The PMC, in turn, was required to "notify the defendant's representative in writing" within 120 days of approval of the consent judgment for all claims of discrimination occurring from January 9, 1976 to the entry of judgment. For discrimination that occurred after the entry of judgment, the PMC was required to notify the Air Force within 60 days of the alleged violation of the consent judgment. If the PMC determined that the claim had merit and was unable to reach an agreement with the Air Force, the matter was submitted to the special master for formal adjudication.

Bess was a civilian engineer at Eglin. After receiving notice of his rights under the consent judgment, Bess submitted a written complaint to the PMC on February 24, 1981, well within the 120 day time period. Bess stated on his complaint form that his grievance "ha[d] to do with promotion and QSI [quality step increase]." The PMC notified the defendant of Bess' complaint, and an Equal Employment Opportunity (EEO) counselor employed by the defendants conducted an investigation. In his interview with the EEO counselor on March 15, 1982, Bess alleged that racial discrimination caused him to be denied promotion to GS-14. Bess also stated that he had been induced to come to Eglin in 1977 by promises of early promotion, but was nevertheless passed over for a number of openings filled by less qualified white applicants. After conducting a number of interviews, the defendants' EEO counselor issued the report of his investigation on April 19, 1982. The PMC and Air Force continued to fail to reach an agreement, and Bess' claims were presented to the special master through a motion for hearing filed on October 3, 1983.

The district court determined that Bess and the PMC were required to file a separate complaint concerning the Gardner position. The district court pointed out that Bess' only complaint was filed with the PMC thirteen months before the Gardner position was filled and, thus, could not cover the Gardner vacancy. The district court reasoned that Bess must be strictly held to the provisions of the consent decree for which the parties bargained. The consent decree required as a prerequisite for litigation that the PMC be contacted and that the defendants be given written notification within 60 days. The district court found that Bess had never contacted the PMC specifically about the Gardner position and that the PMC had not given the Air Force written notification within 60 days of the allegedly discriminatory hiring of Gardner. The district court therefore concluded that Bess had acted "contrary to the plain and unambiguous provisions of the judgment." Accordingly, the court held that Bess' claim concerning the Gardner position was time barred.

Bess makes two general arguments in appealing the district court's determination. The first focuses on Bess' comments concerning the Gardner position to the EEO counselor investigating his complaint. Bess asserts that his statements about the position, along with the ensuing investigation and report, satisfied the notification requirement of section IX of the consent judgment. The district court, however, concluded that Bess had not complied with the plain meaning of the consent judgment because the PMC had never given the defendants written notification. As we discuss below, we do not find it necessary to reach this issue.

Bess' second argument rests upon the proposition that the Gardner position fell within the scope of his original complaint filed on February 24, 1981. Therefore, written notification specifically about the Gardner position was not required because the original complaint alleging discrimination in promotion had already given timely, written notification. The "plain and unambiguous" terms of the consent judgment do not address the scope of a complaint; the judgment is silent as to whether racial discrimination occurring after the filing of a complaint can be considered part of the original grievance. In the absence of any express provision, section II, paragraph 9 of the consent decree offers the only guidance in determining the proper scope of a complaint:

In interpreting the provisions of this judgment, which may become disputed among the parties, the law as set forth by Title VII of the Civil Rights Act of 1964, as construed by the courts, shall apply.

Looking for guidance to Title VII, we find extensive case law concerning the scope of Title VII complaints. Courts have frequently confronted arguments that a judicial action is time barred because the allegations concern events beyond the scope of the complaint filed with the EEOC. The standard that has evolved in this circuit defines the scope of an EEOC complaint as

"encompass[ing] any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the commission." In other words, the "scope" of the judicial complaint is limited to the "scope" of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.

Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970), quoting King v. Georgia Power Co., 295 F.Supp. 943, 947 (N.D.Ga.1968) (citation omitted). See also Gamble v. Birmingham Southern Railroad Co., 514 F.2d 678, 687 (5th Cir.1975). Under Section II, paragraph 9 of the consent judgment, this standard should be applied in determining the proper scope of Bess' complaint.

We hold that Bess' claim regarding the Gardner position fell within the scope of his original, more general complaint. Bess' complaint that he was not promoted to the Gardner position was "like or related to" his overall...