Woodard v. Lehman

• Decision Date: 15 September 1983
• Docket Number: No. 82-1224,82-1224
• Citation: 717 F.2d 909
• Parties: 32 Fair Empl.Prac.Cas. 1441, 32 Empl. Prac. Dec. P 33,806 Hazel D. WOODARD and Robert T. Mills, Appellants, v. John E. LEHMAN, Jr., Secretary of the Navy, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 909

717 F.2d 909

32 Fair Empl.Prac.Cas. 1441,

32 Empl. Prac. Dec. P 33,806

Hazel D. WOODARD and Robert T. Mills, Appellants, v. John E. LEHMAN, Jr., Secretary of the Navy, Appellee.

No. 82-1224.

United States Court of Appeals Fourth Circuit.

Argued Jan. 10, 1983.

Decided Sept. 15, 1983.

John J. McGrath, Jr., Washington, D.C. (John P. Dean, Donovan Leisure Newton & Irvine, Washington, D.C., Ray P. McClain, Charleston, S.C., William L. Robinson, Washington, D.C., Stephen L. Spitz, Columbia, S.C., Lawyers' Committee for Civil Rights Under Law on brief), for appellants.

Alex H. Adkins, Dept. of the Navy, Washington, D.C. (Henry Dargan McMaster, U.S. Atty., Heidi M. Solomon, Asst. U.S. Atty., Charleston, S.C., on brief), for appellee.

Before RUSSELL and ERVIN, Circuit Judges, and FIELD, Senior Circuit Judge.

DONALD RUSSELL, Circuit Judge:

This is a Title VII disparate treatment action instituted by the plaintiffs to redress alleged racial discrimination suffered by them as employees at the Southern Division of the Naval Facilities Engineering Command at Charleston (S.C.) Navy Yard (hereinafter referred to as SOUTHDIV), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq. As initially filed, they sought both individual and class relief. Though begun in 1976, class certification was apparently not resolved finally until 1980. The request for class certification was denied at that time and the plaintiffs have not appealed that denial. The only issues in the case, therefore, are the individual discriminatory treatment claims of the two plaintiffs. ¹ As presented in this appeal, the alleged disparate treatment in each was the failure of the Navy to promote. The District Court, after a trial, found no merit in the claim of either plaintiff on the basis of extensive findings of fact and conclusions of law. ² The plaintiffs have appealed that decision. We affirm.

This proceeding began with the filing by the two plaintiffs of substantially identical administrative claims of disparate treatment with the appropriate officer of their employing federal agency on March 4, 1976. The plaintiff Mills alleged "continuing discrimination against him on the grounds of race" beginning with his employment in 1955 and continuing until the date of his claim, and the plaintiff Woodard, beginning with her employment in 1964 and continuing until the date of her claim. As a result of such alleged discrimination the plaintiff Woodard asserts in her charge that she "had not been able to advance past the position of Accounts Maintenance Clerk, GS-4" and the plaintiff Mills claimed in his charge denial of promotion beyond "the position of Supply Clerk, GS-4." Using exactly the same language both plaintiffs assigned in their separate charges as "the principal reason for [their] inability to advance" (1) "the subjective criteria for determining advancement, especially the 'merit promotion performance appraisal' " and (2) the denial of "opportunities for training and doing certain types of work which are said to be prerequisites for advancement."

After a review of these charges and the report of the EEO counselor in connection therewith, the Commanding Officer "requested the plaintiffs to provide written statements with specific illustrations of the alleged discrimination and a specific statement of the corrective action required." This request followed the procedure set forth in Federal Personnel Manual Letter 713-21, dated September 21, 1973, as quoted in Johnson v. Bergland, 614 F.2d 415, 417, n. 2 (5th Cir.1980). The plaintiffs, according to the findings of the District Judge "responded that the complaints presented to the EEO counselor were sufficient as the charge was one of systematic and continuing discrimination." Following this refusal by the plaintiffs to amplify their charges by giving specific instances or dates, the Commanding Officer cancelled the charges for a failure to prosecute for failure to comply with this request for specification. The letter of cancellation, which was dated May 9, 1976, advised the plaintiffs of their right of appeal to the Civil Service Commission or to file an action for judicial review in the appropriate federal District Court.

The plaintiffs, electing to file their complaint for judicial relief, thereupon began this action, on June 17, 1976, alleging racial discrimination in failure to promote for the same reasons as detailed in their administrative charges. In answering the complaint of the plaintiffs, the defendant plead as his first defense that "[p]laintiffs [had] failed to exhaust administrative remedies prerequisite to the filing of suit by a federal employee under Sec. 717(c) of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16(c)." ³ The defendant, also, denied any discrimination. After this joinder of issues, the defendant moved formally to dismiss the action for failure of the plaintiffs "to exhaust their administrative remedies by refusing to provide specific details as to their charges of discrimination, after having been requested to do so by a Navy official. That motion was denied, the District Court stating:

"The record shows however, that this is not a case in which a charging party refused to cooperate with a reasonable investigative request; here, counsel for the plaintiffs promptly stated in response to the request that both he and the plaintiffs were willing to meet with Navy officials to provide additional details. The Navy's decision to cancel the charges of discrimination despite plaintiffs' willingness to cooperate in the investigation cannot properly be blamed on the plaintiffs, and furnishes no basis for a dismissal of this case."

After the motion to dismiss was denied, the parties proceeded to discovery and to trial on the merits. At the completion of the trial, the District Court filed its findings of fact and conclusions of law. In its findings on plaintiff Woodard's claim it found first that "[a]t the time Woodard complained about discrimination at SOUTHDIV in 1976, however, the only positions [that had been] filled were reassignments or lateral transfers from other Navy activities [in accordance with established Navy employment policy]. The defendant did not 'promote' any of the applicants." On the basis of this finding, the District Court concluded that Woodard had "not made a prima facie showing of discrimination" at the time of her complaint under the McDonnell-Douglas standard since there was no vacancy for a promotion for which the plaintiff was qualified and which was given a white employee during the time covered by her charge. ⁴ But "[a]ssuming arguendo that Hazel Woodard [had] made out a prima facie claim" and that there was a position from 1964 on to which she could have been promoted the District Court went on to find that "the defendant [had] articulated a legitimate, nondiscriminatory reason for her rejection" for promotion. It detailed the facts offered in support of this reason as presented by the defendant and then concluded, after reviewing plaintiff Woodard's proof in response, that the latter had "not been able to demonstrate that reasons articulated by the defendant for her rejection [were] pretextual." ⁵ It accordingly dismissed Woodard's claim of racial disparate treatment. So far as the other plaintiff was concerned, the District Court found that the defendant "had no vacancies for positions desired by Robert Mills" within the relevant time period and further that during this period, "he was offered training in another field with excellent potential for advancement, but he declined the offer." Another black was selected for the training that Mills had refused and was subsequently promoted by the defendant to the GS-8 level. It found under these facts that Robert Mills had not made "a prima facie showing of discrimination." The District Court accordingly dismissed both claims. These are the findings which the plaintiffs on this appeal challenge. Such findings may only be reversed if clearly erroneous.

Before discussing the District Court's findings on the substantive merits of the plaintiffs' claims, it is necessary to consider the propriety of the denial of the defendant's threshold motion to dismiss for failure of the plaintiffs to exhaust administrative remedies. In their administrative charges, as we have already observed, the plaintiffs did not give any specifications of a discriminatory action taken against them by the defendant on a date "within 30 calendar days" of their charges. The federal regulations under Sec. 2000e-16, 42 U.S.C. (the plaintiffs' exclusive remedy, see Brown v. GSA, supra, 425 U.S. at 829-32, 96 S.Ct. at 1966-68), expressly provide that a federal agency need consider a discrimination charge or complaint only if "the complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days ...." 29 C.F.R. 1613.214(a)(1) (Italics added). The validity of this regulation is well settled. See Ettinger v. Johnson, 518 F.2d 648, 652 (3d Cir.1975). See also, Kizas v. Webster, 707 F.2d 524, 544-46 (D.C.Cir.1983). Moreover, the plaintiffs and their counsel appear to have been cognizant of this requirement and of its applicability. Thus, the plaintiff Woodard, in her charge which was obviously prepared by her counsel, purported to comply with this requirement alleging that "[t]he most recent act of discrimination, which has occurred within the past 30 days, is the refusal to afford me opportunities for training [which could lead to advancement] which were given to white persons in my department." ⁶ (Italics added) When pressed for details of any act of discrimination within 30 days of the filing of their complaints, both Ms. Woodard and Mills refused, each declaring categorically in response to an interrogatory requesting such details that: "My individual claim of ...