Williams v. Tennessee Valley Authority

• Decision Date: 28 March 1977
• Docket Number: Nos. 76-1606,76-1607,s. 76-1606
• Citation: Williams v. Tennessee Valley Authority, 552 F.2d 691 (6th Cir. 1977)
• Parties: 14 Fair Empl.Prac.Cas. 998, 13 Empl. Prac. Dec. P 11,597 John H. WILLIAMS et al., Plaintiffs-Appellees, v. TENNESSEE VALLEY AUTHORITY et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 691

552 F.2d 691

14 Fair Empl.Prac.Cas. 998,

13 Empl. Prac. Dec. P 11,597

John H. WILLIAMS et al., Plaintiffs-Appellees, v. TENNESSEE VALLEY AUTHORITY et al., Defendants-Appellants.

Nos. 76-1606, 76-1607.

United States Court of Appeals Sixth Circuit.

Argued Dec. 7, 1976.

Decided March 28, 1977.

Herbert S. Sanger, Jr., Justin M. Schwamm, James E. Fox, Thomas F. Fine, Tenn. Val. Authority, Knoxville, Tenn., for defendants-appellants.

Avon N. Williams, Jr., Nashville, Tenn., Jack Greenberg, Charles Stephen Ralston, Bill Lann Lee, New York City, for plaintiffs-appellees.

Before EDWARDS, McCREE and ENGEL, Circuit Judges.

EDWARDS, Circuit Judge.

These are consolidated interlocutory appeals from two orders of the District Court in an employment discrimination case, 42 U.S.C. § 2000e-16 (1970). The first interlocutory appeal concerns the District Court's order holding that plaintiff was entitled to a trial de novo after submission of his complaint of race discrimination to a Civil Service Commission Complaints Examiner and to the Civil Service Appeals Board. The second interlocutory appeal concerns a memorandum and order of the District Court certifying the plaintiff class, and defining it.

Williams was employed by defendant Tennessee Valley Authority from 1968 to 1971, during which time he completed a grading and paving equipment apprenticeship. Thereafter on several occasions he applied for permanent employment as a heavy equipment operator. He claims that each time a less qualified white applicant got the job. TVA, on the other hand, claims that it rejected him not on racial grounds but because he was not qualified for the position.

Williams filed a handwritten complaint with TVA. When TVA rejected his complaint, he appealed to the Appeals Review Board of the United States Civil Service Commission. A hearing was held and a written opinion denying his complaint was entered on or about September 3, 1974. Appellee Williams then filed the current complaint in the District Court for the Middle District of Tennessee. The complaint sought a trial de novo on appellee Williams' claims of racial discrimination in TVA's failure to hire him. It also stated a broad class action alleging racial discrimination in TVA's employment practices generally.

The District Judge in preliminary proceedings held that appellee had a right to a trial de novo. He thereupon held a hearing upon the propriety of entertaining plaintiff's suit as a class action. At that hearing appellant TVA relied upon Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), for the proposition that in order to maintain a class action every member of the class had to exhaust administrative remedies. The District Judge found to the contrary. He held:

Congress intended federal employees to have the same remedies as private sector employees under the Act. The procedural provisions applicable to private litigants are expressly adopted as governing federal litigants in § 2000e-16(d).

Williams v. Tennessee Valley Authority, 415 F.Supp. 454, 457 (M.D.Tenn.1976).

It is now clear that a private sector employee who has exhausted his or her administrative remedies may maintain a class action under Title VII, even though no other member of the class has exhausted administrative remedies. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979, 985 n. 11 (1973); Oatis v. Crown Zellerbach Corporation, 398 F.2d 496, 499 (5th Cir. 1968). See also Tipler v. E. I. duPont de Nemours & Co., 443 F.2d 125, 130 (6th Cir. 1971). The Supreme Court in footnote 8 in Albemarle Paper Co. v. Moody, supra, stated:

The petitioners also contend that no backpay can be awarded to those unnamed parties in the plaintiff class who have not themselves filed charges with the EEOC. We reject this contention. The courts of appeals that have confronted the issue are unanimous in recognizing that backpay may be awarded on a class basis under Title VII without exhaustion of administrative procedures by the unnamed class members. See, e.g., Rosen v. Public Service Electric & Gas Co., 409 F.2d 775, 780 (CA3 1969), and 477 F.2d 90, 95-96 (CA3 1973); Robinson v. Lorillard Corp., 444 F.2d 791, 802 (CA4 1971); United States v. Georgia Power Co., 474 F.2d 906, 919-921 (CA5 1973); Head v. Timken Roller Bearing Co., supra, 486 F.2d (870 (CA6 1973) ) at 876; Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719-721 (CA7 1969); United States v. N. L. Industries, Inc., 479 F.2d 354, 378-379 (CA8 1973).

The District Judge concluded:

For the reasons hereinbefore stated, this suit will be certified as a class action in behalf of all blacks presently employed by TVA, or formerly employed and presently laid off, who have allegedly been discriminated against on the basis of race.

Williams v. Tennessee Valley Authority, supra at 459.

The District Judge's memorandum also provided for an additional hearing (which has not yet been held) to determine the type of notice to be given to members of the class.

Subsequent to these proceedings, appellant TVA sought certification to this court as to both the de novo trial issue and the two class action issues, and District Judge Morton certified these issues as controlling questions of law. Thereupon in separate orders this court granted leave to appeal as to these issues.

Since the District Court action on granting de novo hearing in this proceeding and denying TVA's motion for summary judgment, this court has decided the de novo trial issue in Abrams v. Johnson, 534 F.2d 1226 (6th Cir. 1976), and more importantly, the Supreme Court has decided the same issue in Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). We therefore affirm the District Court's order granting a trial de novo.

The second certified question pertains to exhaustion of administrative remedies in class actions. After the oral arguments in the instant case, the parties submitted written arguments based on Simmons v. Schlesinger, 546 F.2d 1100 (4th Cir. 1976), which was issued one day before the instant case was argued to this court. The Fourth Circuit in Simmons affirmed the District Court in refusing to certify a class action in a federal employment discrimination case because of failure to exhaust administrative remedies as to the class issue. The Simmons court took particular note of the District Court opinion in the instant case and distinguished it on the ground that here appellee Williams had presented not only his individual claims but also the class claims of discrimination at the administrative level.

While we agree with Judge Morton that appellee Williams did satisfactorily exhaust administrative remedies before the Civil Service Commission Board of Appeals and Review, we are not certain that Judge Morton's decision on certification of a class action in a federal employment discrimination case is reconcilable with much of the language in the Simmons opinion. Careful reading of the Simmons opinion suggests that its discussion of the "full arsenal of remedial powers" in the Civil Service Commission (CSC) review of discrimination claims might form a logical predicate for denial of any class action on racial discrimination charges by government employees and would support TVA's claim that no racial discrimination case could be brought except by each employee filing and processing his or her individual claim before the agency and the CSC.

We do not so read either Congressional intent in adopting the 1972 Amendments to Title VII (which amendments created a judicial remedy for discrimination in federal employment) or the interpretations of these amendments by the Supreme Court.

Dissatisfaction with complaint procedures of the CSC prior to 1972 and uncertainty about the requirement of exhaustion of administrative remedies were among the factors leading Congress to make judicial relief available to federal employees under Title VII. The House Report made these comments concerning CSC procedures prior to 1972:

A critical defect of the Federal equal employment program has been the failure of the complaint process. That process has impeded rather than advanced the goal of the elimination of discrimination in Federal employment. The defect, which existed under the old complaint procedure, was not corrected by the new complaint process. The new procedure, intended to provide for the informal resolution of complaints, has, in practice, denied employees adequate opportunity for impartial investigation and resolution of complaints.

Under the revised procedure, effective July 1, 1969, the agency is still responsible for investigating and judging itself. Although the procedure provides for the appointment of a hearing examiner from an outside agency, the examiner does not have the authority to conduct an independent investigation. Further, the conclusions and findings of the examiner are in the nature of recommendations to the agency head who makes the final agency determination as to whether discrimination exists. Although the complaint procedure provides for an appeal to the Board of Appeals and Review in the Civil Service Commission, the record shows that the Board rarely reverses the agency decision.

The system which permits the Civil Service Commission to sit in judgment over its own practices and procedures which themselves may raise questions of systemic discrimination, creates a built-in conflict-of-interest.

Testimony reflected a general lack of confidence in the effectiveness of the complaint procedure on the part of Federal employees. Complainants were skeptical of the Civil Service Commission's record in obtaining just resolutions of complaints and adequate remedies. This has discouraged persons from filing complaints with the Commission for fear that it will only result in antagonizing their supervisors and impairing any hope of...