403 F. Supp. 770 | D.D.C. | 1975
MEMORANDUM
This matter came before the court on defendants’ motion to dismiss and on the parties’ cross-motions for summary judgment. In her complaint, plaintiff alleges a pattern of sex discrimination during the course of her employment as a physicist with the United States Army Night Vision Laboratory, culminating in the initiation of a reduction-in-force action against her by which her grade was reduced from GS-15/7 to a GS-13. Plaintiff appealed this action to the Appeals Examining Office of the Civil Service Commission and subsequently to the Appeals and Review Board, both panels rendering decisions adverse to her. The Review Board entered its decision in May, 1973, and in July, 1973, Dr. Bramley’s petition for reconsideration of her appeal on grounds that the Board had improperly failed to notify her of her right to file a civil action within 30 days of the receipt of its final decision, was denied by the Board. One year later, in June, 1974, plaintiff once again, by counsel representing her in the instant action, unsuccessfully petitioned the Board to reopen and reconsider her case based on alleged newly-discovered material evidence and an argument that the Board did not properly consider her ■original appeal since there was no indication in its opinion that the Board evaluated the basis of her sex discrimination claim apart from her separate challenge to the reduction-in-force (RIF).
In essence, Dr. Bramley’s complaint concedes that the Commission correctly
This court is of the opinion that it should not reach a determination on the merits of the plaintiff’s complaint. The government correctly asserts that Dr. Bramley failed to file a timely civil action as provided in 42 U.S.C. § 2000e-16(c),
Dr. Bramley filed two separate complaints with the Civil Service Commission in June and July, 1972 when she was notified of the RIF action against her. One complaint challenged the action under standard grievance procedures, processed under Part 351 of CSC regulations, and a separate complaint was filed under the provisions of the Equal Employment Opportunity Act alleging sex discrimination, normally processed under Part 713. By action of the Civil Service Commission, plaintiff’s discrimination claim was joined procedurally with her RIF appeal, pursuant to 5 C.F.R. § 713.236. The section reads, in pertinent part:
“When the basis of the complaint of discrimination because of race, color, religion, sex, or national origin, involves an action which is otherwise appealable to the Commission and the complainant having been informed by the agency of his right to proceed under this subpart . . . the case will be processed under the regulations appropriate to that appeal. . . ”
Upon her request for reconsideration filed in June, 1973, on the basis that the Board had not properly informed the plaintiff of her right to file a civil action within 30 days in the United States District Court, the Board informed her that her “appeal was processed under Part 351 of the Civil Service regulations, pertaining to appeals in reduetion-in-foree actions. There is no 30-day time limit for filing a civil action in the United States District Court in a reduction-in-force appeal case.”
First. of all, although plaintiff’s complaint fails to allege § 2000e-16(c) as a basis for jurisdiction, there is no dispute that Dr. Bramley’s instant discrimination complaint lies within the purview of relief afforded by the EEO Act. Plaintiff has founded her action on the principles of the Act,
Section 2000e-16(c) has been interpreted as a waiver of sovereign immunity, creating a limited right to bring a civil action within a specified time. See Brown v. General Services Administration, 507 F.2d 1300, 1306-07 (2d Cir. 1974), cert. granted, 421 U.S. 987, 95 S.Ct. 1989, 44 L.Ed.2d 476 (1975). See also Hackley v. Roudebush, 520 F.2d 108, 122 n. 53, 128 (D.C.Cir.1975). Statutes waiving sovereign immunity are to be strictly construed,
If Title VII actions in the private sector can be compared to this case,
Within this rubric, Dr. Bramley argues that the joinder of her separate claims under standard grievance regulations prejudiced her case by obscuring the issues raised in her EEO complaint, and thus the court should make an independent determination of her sex discrimination claim. Even assuming this were true, the reviewability of the issues raised before the Commission would be unaffected. Presumably, final agency disposition of the plaintiff’s consolidated claims should be deemed final action on the distinct issues of the EEO complaint, regardless of whether the Commission ignored plaintiff’s allegations of on-going sex discrimination. Upon such final action, plaintiff then would be entitled to bring her claim to federal court within 30 days, making the same arguments she has made in the instant complaint. The treatment of plaintiff’s claim by the Commission does not entitle the plaintiff to a protracted right of bringing an action in this court, so long as final disposition has, in fact, been made by the agency, as is the case here.
As a further matter of equity, one aspect of the Commission’s handling of plaintiff’s case is disturbing. In response to her first request for reconsideration in June, 1973, on grounds that she had not received proper notice of the 30-day restriction for filing suit in District Court, the Commission responded incorrectly that, because her EEO complaint was processed under Part 351, the 30-day limit did not apply. If the court were to reach the merits of the plaintiff’s argument, this assertion by the Commission might serve to support her argument that the agency misinterpreted the legal basis of her complaint and thus failed to consider the substance of the sex discrimination claim. However, in a determination here of the effect of the Commission’s representation on plaintiff’s right to maintain this action, the focus must be the degree of prejudice caused to the plaintiff and the impact of that prejudice upon the statutory time limit. The plaintiff’s awareness that she still had an EEO claim after the Commission’s action in May, 1973 is demonstrated by the petition for reconsideration filed by her present counsel in June, 1974. Arguing both that the Commission had ignored her sex discrimination claim, and that there was newly-discovered material evidence to substantiate that claim, plaintiff must be deemed to have been cognizant of the essential nature of her appeal, and should not be excused for failure to file a civil action for a claim clearly “brought pursuant to subsection [2000e-16(a)]”
The Ninth Circuit addressed a comparable fact situation in Gates v. Georgia-Pacific Corp., supra, and found for the plaintiff. The significant distinguishing feature of that case is the diligence of the plaintiff in Gates once she was formally on notice of the 30-day limit of section 2000e-5(f) (1), applicable to actions arising in the private sector. Although, unlike the present action, Gates
Finally, the recent decision of this Circuit in Hackley v. Roudebush, supra, underscores the special treatment Congress intended to be accorded the complaints of federal employees under Title VII. 520 F.2d 122-56. Whenever a federal employee raises a claim of discrimination and brings a civil action in District Court, the court now must undertake its consideration through the procedure of trial de novo and the preponderance of the evidence test, rather than by review of the administrative record, adhering to . the substantial evidence standard.
. Equal Employment Opportunity Act of 1972, § 717(c), 42 U.S.C. § 2000e-16(c) (Supp. Ill, 1973).
. A determination of which action of the Review Board constitutes a final disposition of plaintiff’s claim is not required here, because even if the August, 1974 denial of reconsideration were the operative action, the January, 1975 filing date of this action does not comply with the statutory requirement. Clark v. Goode, 499 F.2d 130, 133-34 (4th Cir. 1974) ; Kurylas v. Department of Agriculture, 373 F.Supp. 1072, 1074 (D.D.C.1974), aff’d, 514 F.2d 894 (D.C.Cir.1975).
. Despite failing to include section 2000e-16 in the paragraph of her complaint alleging jurisdiction, paragraph 25 alleging the wrongs of the defendants avers an unlawful violation of 42 U.S.C. § 2000e et seq., recognizing the proper basis of plaintiff’s sex discrimination claim.
. See, e.g., Clark v. Goode, supra, at 133-34; Kurylas v. Department of Agriculture, supra, aff’d, 514 F.2d 894 (D.C.Cir.1975) ; Roney v. Saxbe, 380 F.Supp. 1191 (D.D.C. 1974).
. Brown v. General Services Administration, supra, at 1307.
. Section 2000e-16(d) expressly states that the applicable provisions of section 2000e-5(f) through (k), pertaining to private liti-j gants, shall govern civil actions under 2000e-16, thereby sanctioning the adoption of certain general principles controlling private sector discrimination. See Hackley v. Roudebush, supra, at 118-22.
. 42 U.S.C. § 2000e-16(c) (Supp. Ill 1973).
. Plaintiff here does not seek a trial de novo, but asks the court to decide a question she alleges was ignored by the Commission, or to remand to the Commission with directions to address the issue of on-going sex discrimination. The court would not be inclined to decide the issue at this juncture, absent evidence of intentional neglect on the part of the agency. Following a remand, plaintiff then could come back seeking de novo review under Haehley, despite having circumvented the proper procedures until that point.