Gooley v. ConwayGooley v. Conway
Jonathan H. Waxman, U. S. Dept. of Labor, Washington, D. C. (argued), Carin Ann Clauss, Nathaniel Baccus, III, Edward N. Perry, Washington, D. C., Robert D. Kingsland, U. S. Atty. and Wesley D. Wedemeyer, Asst. U. S. Atty., St. Louis, Mo., on brief, for appellees.
Before GIBSON, Chief Judge, and BRIGHT and HENLEY, Circuit Judges.
HENLEY, Circuit Judge.
Louis J. Gooley, Earl Hemphill and Steven Casey, hereinafter referred to as plaintiffs, appeal from a judgment of the United States District Court for the Eastern District of Missouri,1 dismissing a complaint filed by them against the City of St. Louis, Missouri, the Mayor of the City, and other local and federal officials concerned with the administration in St. Louis of the public employment program established by the Comprehensive Employment and Training Act of 1973 (CETA),
The suit was filed on October 20, 1977, and the complaint was amended on November 22 of that year. The local defendants filed an answer dеnying that plaintiffs were entitled to any relief. Thereafter both sets of defendants filed motions to dismiss the complaint, or alternatively, for summary judgment pursuant to
The district court held that plaintiffs had no constitutional right in the circumstances to pre-termination notice and hearing. As to the alternative claim of plaintiffs, the district cоurt was of the view that the complaint, as amended, adequately set out as a Second Cause of Action a failure of the City and its officials to establish a grievance procedure for the protectiоn of CETA employees threatened with discharge as required by applicable CETA regulations. However, the district judge considered that plaintiffs had an adequate administrative remedy by proceeding against the City by means of complaints to the Department of Labor, and that plaintiffs should be required to exhaust that remedy, which they had not done. The complaint was dismissed without prejudice.3
For reversal, the plaintiffs again urge their constitutional claim; and they also contend that the district court erred in holding that they were required to exhaust in the Department of Labor the administrative remedies established by
The record reflects that one of the plaintiffs was hired as a trash hauler; another was hired as a laborer in the parks owned and operated by the City; and the third was employed as a street sweeper and was supplied with a machine to use in his work. One of the plaintiffs was discharged for failure to report for work without excuse; another was fired on account of repeated absenteeism; and the plaintiff who had been hired as a street sweeper was discharged because of his alleged negligent management of his machine which caused it to sustain damage. None of the plaintiffs was discharged on account of race, religion, age, sex, color or national origin or because he had undertaken to exercise a federally protected right such as, for example, freedom of speech or freedom of association.
Each of the plaintiffs was given a written notice of termination which notice set out the reason for the discharge. However, each plaintiff was advised that he had no recourse with respect to the summary action taken by the City.
However, where a federal statute requires а state or local agency administering a federally funded program to provide grievance procedures for employees who had been or are about to be terminated, such procedures must bе established and implemented. Cf. Norton v. Blaylock, 409 F.2d 772 (8th Cir. 1969), aff‘g 285 F.Supp. 659 (E.D.Ark.1968).
Section 702 of the Act, as amended,
Cities, like St. Louis, that participate in the CETA program are known as “prime sponsors,” and individuals who are employed in the programs or who seek employment therein are known as “participants.”
There is no question that the regulations that were in force during the period with which we are concerned required the City of St. Louis to set up grievance procedures that would have been available to these plaintiffs.
In holding that the plaintiffs had failed to exhaust their administrative remedies, it apрears that the trial judge may have assumed that the procedures appearing in
Department of Labor regulations at
29 C.F.R. §§ 98.40 ,98.49 provide for a review by the Department of actions by a prime sponsor. Plaintiffs have not sought to employ those procedures. They claim that the procedures are “wholly inadequate for treating the issues raised.” The Court does not agree.The Department of Labor has an interest in monitoring the City‘s CETA program. It is in a position to provide plaintiffs with all the relief sought that this Court considers available. Elementary principles of administrative law require that plaintiffs exhaust these remedies before this Court may proceed. Continental Research Corp. v. Train, 426 F.Supp. 713 (E.D.Mo.1976). The Department of Labor has substantial expertise with regаrd to questions arising under CETA and this Court fully intends to give it an opportunity to be exercised. Accordingly, the action will be dismissed without prejudice to allow plaintiffs to pursue their administrative claims.
We find that we have some trouble with thаt approach. We are not convinced that the particular regulations to which the district court referred were ever intended to apply to day to day employer-employee controvеrsies like the ones involved in this case; and we seriously doubt that it would be reasonable to require individual people of the type likely to be hired under municipal CETA programs to resort to the somewhat cumbersome procedures provided for by the regulations cited by the district judge.
However, as we have seen, the dismissal of the complaint was without prejudice, and it can be filed again. Additionally, in their brief counsel for the Seсretary indicate that the administrative remedies in question are available to plaintiffs and can give them effective relief. For the present at least, we accept the representations of cоunsel as having been made in good faith and with understanding, and the views of the agency and its counsel as to the scope and effectiveness of the remedies in question are entitled to respect.
With affairs in this state, we affirm the judgment of the district court. If the plaintiffs apply promptly to the Department of Labor for relief, and if no effective action on that application is taken within a reasonable time, plaintiffs can come back into court. We express no opinion as to whether the City was justified in discharging any or all of the plaintiffs in 1977 either with or without due process hearings.
Affirmed.
GIBSON, Chief Judge, concurring in the result.
I concur in the opinion of the court that the district cоurt should be affirmed. However, in my view the appellants were not entitled to any due process hearing prior to their termination of employment under the circumstances of this case. The appellants were participants in a temporary program of emergency relief financed by the federal government and administered by the City of St. Louis. No tenure attaches to these positions of employment by statute or contract. The City, as employer, should have the right to terminate persons holding these positions for any reason absent some constitutional discrimination.
There has been no showing of any violation of any constitutional rights in this case. To burden this program with pre-termination hearings and endless appeals, virtually all at public expense, would do great harm to the congressional policy expressed in this Act of securing employment for participants in the program.