MILLER v. SMITH

MEMORANDUM

HAROLD H. GREENE, District Judge.

This is an action under Title VII of the Civil Rights Act in which plaintiffs, present and former employees of the United States Marshals Service, allege that defendants have discriminated against them in recruitment, hiring, assignments, training, promotions, and discipline on account of their race. The instant motion for partial summary judgment claims failure to exhaust administrative remedies by a number of plaintiffs.1 The motion will be granted.

I

Section 717 of Title VII, 42 U.S.C. § 2000e-16, provides the exclusive judicial remedy for discriminatory employment practices in the federal government. Brown v. General Services Administration, 425 U.S. 820, 829, 96 S.Ct. 1961, 1966, 48 L.Ed.2d 402 (1976). In order to invoke the jurisdiction of the Court under this section, an aggrieved employee must exhaust his administrative remedies. Id. See also Sampson v. Civiletti, 632 F.2d 860, 862 (10th Cir.1980). The first procedural requirement is that the complainant timely seek relief in the agency that has allegedly discriminated against him. Mangiapane v. Adams, 661 F.2d 1388 (D.C.Cir. 1981). Defendants allege that plaintiffs Franklin Beagle, Alfred Bell, James Perry, and the National Black Deputy United States Marshals Organization have failed to file an administrative complaint with the United States Marshals Service.

The exhaustion requirement serves important policies. The requirement that aggrieved employees present their discrimination complaints to an agency rather than to a court in the first instance encourages informal, concilatory resolution of disputes and reduces the burden on federal courts. Sampson v. Civiletti, supra, 632 F.2d at 862-63. In addition, it permits the agency to develop a record and to exercise its discretion, to apply its expertise, and possibly to discover and correct its own errors. Id. at 863. See also, Cooper v. Bell, 628 F.2d 1208 (9th Cir.1980). However, because lay persons, unassisted by trained lawyers, initiate the complex process of resolving employment discrimination complaints, the administrative and procedural requirements to Title VII are not interpreted too technically or applied too mechanically. Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972); Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 727 (D.C.Cir. 1978); Richerson v. Jones, 572 F.2d 89, 95-96 (3rd Cir.1978). While a charge of employment discrimination therefore need not track the formal rules of pleading, it must describe the facts and legal theory with sufficient clarity to notify the agency that employment discrimination is claimed. Cooper v. Bell, 628 F.2d 1208, 1211 (9th Cir.1980); Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 727-28 (D.C. Cir.1978); 29 C.F.R. § 1601.11.

II

Franklin Beagle and Alfred Bell concede that they have not filed a written complaint with the United States Marshals Service. However, they claim that in 1977 they registered discrimination complaints with Earl Tolson, the EEO Counselor for the District of Columbia Marshals' Office, and that he assured them that their complaints would be processed.2 Relying on these alleged assurances from Tolson,3 plaintiffs did not take any further action because they assumed that their complaints were being processed. Plaintiffs argue that by giving notice to the EEO Counselor and relying in good faith upon the agency's assurances, they fully complied with the procedural requirements of filing a complaint and exhausting their administrative remedies.

Even if a court were to find for purposes of this motion that plaintiffs' general statements regarding their attempts to file EEO complaints create a genuine issue of material fact (which is doubtful—see notes 3 and 4 supra), the Court would still be required to dismiss their complaints. By bringing their complaints of discrimination to the attention of the EEO Counselor, plaintiffs took only the first step in the administrative process.

The regulations require aggrieved federal employees to file a timely written complaint. 29 C.F.R. § 1613.214(a)(1) provides

Even if Tolson's alleged representation to plaintiffs supported an equitable tolling of Title VII's administrative exhaustion requirements, it clearly does not excuse plaintiffs from at least filing a complaint. Siegel v. Kreps, 654 F.2d 773, 777 (D.C.Cir. 1981). Between the time Bell and Beagle complained briefly and orally to the EEO counselor and the time this lawsuit was filed, they never pursued their complaints with the agency. In other words, for over two years Bell and Beagle did absolutely nothing—this clearly does not satisfy the exhaustion requirement of Title VII. The complaints of Beagle and Bell will be dismissed.

III

The National Black Deputy United States Marshals Organization did file an administrative complaint in 1974. However, that complaint was withdrawn on February 23, 1976 as a result of an agreement of compromise filed in Miller v. Saxbe, C.A. No. 74-1604 (D.D.C.). The Organization now argues that it is entitled to litigate its claim in this Court because defendants have not complied with the terms of the agreement and therefore the discrimination is continuous in nature. That is not an adequate basis for the present claim. Plaintiff is, of course, free to bring an action for breach of the 1976 settlement agreement, or it may file a new administrative complaint, initiating a new action. It may not, however, institute a civil action under Title VII without first exhausting its administrative remedies with regard to the new claim.4

IV

Defendants argue that plaintiffs Joyce Jennings, Hordon Evono, and Frank Percy must be dismissed as parties to this lawsuit because each of them received final agency decisions on their EEO complaints more than 30 days prior to the filing of this action on September 29, 1979.5 Under Section 717(c) of Title VII, claimants may file a civil action only if they do so within 30 days after receiving notice of final action by the agency or by the EEOC on appeal, or within 180 days after the filing of their administrative complaint with the agency or an appeal with the EEOC if there has been no final action. 42 U.S.C. § 2000e-16(c). This time limitation is jurisdictional. Brown v. GSA, supra, 425 U.S. at 833-34, 96 S.Ct. at 1968-69; Hofer v. Campbell, 581 F.2d 975 (D.C.Cir.1978); and Richardson v. Wiley, 569 F.2d 140, 142 (D.C.Cir.1977).

1. To overcome this jurisdictional requirement, plaintiff Jennings alleges that she never received notice that the agency rendered a final decision on her complaint of January 28, 1977. That is plainly untrue. Jennings must have had notice: she actually appealed the final agency decision to the Appeals Review Board of the United States Civil Service Commission.6

Even if Jennings' claims were timely, the motion to dismiss would still be appropriate. In her complaint to the agency, Jennings alleged only discrimination based on sex, while in the instant action, she alleges that the Marshals Service is discriminating against her because of her race. Under Title VII, a plaintiff may not raise in Court a basis of discrimination which was not included in her administrative complaint. Saad v. Burns International Security Services, Inc., 456 F.Supp. 33, 36 (D.D.C.1978); Lamont v. Forman Brothers, Inc., 410 F.Supp. 912, 917 (D.D. C.1976), see also, LeGare v. University of Pa. Medical School, 488 F.Supp. 1250, 1254 (E.D.Pa.1980).

The issues plaintiff may raise in a Title VII action are limited to those within the scope of the administrative investigation which grows or could reasonably be expected to grow out of the administrative charge of discrimination. Clark v. Chrysler Corp., 673 F.2d 921 (7th Cir.1982); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.1970); Lamont v. Forman Bros. Inc., 410 F.Supp. 912, 917 (D.D.C. 1976). The rationale for this rule is obvious given the purpose of the exhaustion requirement.

Sanchez v. Standard Brands, Inc., supra, 431 F.2d at 466.

2. Following his discharge on July 7, 1972, Hordon Evono filed an EEO complaint with the U.S. Marshals Service on July 21, 1972.7 On January 10, 1973, the agency issued its decision finding no merit to Evono's complaint and Evono filed a civil action under Title VII. On February 1, 1980, the United States Magistrate, who was presiding over Evono's case, ordered the U.S. Marshals Service to reinstate Evono. Evono v. United States, C.A. No. 74-19 (D.D.C. February 1, 1980), aff'd, No. 80-1366 (D.C.Cir. June 8, 1981).

Evono filed a second EEO complaint on February 13, 1978, in which he raised the same issues concerning his 1972 termination as he did in his 1972 EEO complaint. In addition, he alleged that the U.S. Marshals Service has continued to discriminate against him since 1972 by failing to rehire him as a United States Marshal. The EEOC rejected Evono's 1978 complaint because it challenged the validity of a dismissal occurring almost six years before the complaint was filed. Defendants support this rejection here, but their contentions are not well taken. Evono's allegations that the U.S. Marshals Service maintained a discriminatory system at the time he was terminated and that it continued to maintain that system until the time he filed his EEO complaint in 1978, is cognizable under Title VII as a "continuing violation." See Valentino v. United Postal Service, 674 F.2d 56, 65 (D.C.Cir.1982).

The fact is, however, that Evono was reinstated as a result of his lawsuit following his 1972 EEO complaint. Accordingly, his allegation that the U.S. Marshals Service's refusal to hire him—which is the basis of his continuous discrimination claim—is now moot. Questions as to any relief to which Evono may be entitled upon his reinstatement as a result of the allegedly discriminatory conduct of the U.S. Marshals Service between 1972 and 1978 (e.g., back pay and seniority) are most properly resolved by the Magistrate in C.A. No. 74-19.8

3. Frank Percy does not deny that he received notice of final agency action on his 1976 EEO complaint on February 8, 1977, over two years before this lawsuit was filed. Subsequent to this agency decision, Percy filed both informal and formal EEO complaints, and he argues that these complaints satisfied the time limitations of Title VII. The Court finds that by filing and then withdrawing the subsequent EEO complaints, Percy did not exhaust his administrative remedies. Percy's informal EEO complaints filed in the spring of 1978 and fall of 1979 were resolved through informal counseling.

Percy alleges, however, that he withdrew his informal complaints and never filed formal complaints because the U.S. Marshals Service represented that it would cease discriminating against him. Assuming these allegations to be true, as the Court must in a motion for summary judgment, the Court finds that Percy has still failed to exhaust his administrative remedies. Allegations of continuing discrimination are not a substitute for the filing of an administrative complaint.

V

Defendants argue that plaintiff Anthony Sprufero must be dismissed as a party to this litigation because he alleged a different basis for discrimination in his administrative complaint than he does here.

Anthony Sprufero, a Caucasian Italian-American, alleged that he was being discriminated against because of his national origin. In the complaint filed with this Court, however, Sprufero alleges that he was discriminated against because of his association with blacks.9 The allegations of discrimination based on national origin were not such that the U.S. Marshals Service would be apprised of or could reasonably be expected to investigate whether Sprufero was discriminated against because of his association with Blacks. See Part IV-1 supra. Accordingly, Sprufero has failed to exhaust his administrative remedies and the Court will dismiss his claim.10

VI

The claim of Harry Paige must be dismissed for a number of reasons. First, he never initiated the EEO process or filed a complaint in a timely manner. The Marshals Service terminated Paige on December 6, 1971, but he did not contact an EEO Counselor until August 6, 1976, and he did not file a formal EEO complaint under February 2, 1978.11 The regulations require the complainant to bring to the attention of the EEO Counselor the matter causing him to believe he has been discriminated against "within 30 calendar days of the date of that matter, or if a personnel action, within 30 calendar days of its effective date." 29 C.F.R. § 1613.214(a)(1)(i).12 Paige's complaints were clearly untimely.13

Second, Paige's EEO complaint was not pending on March 24, 1972, the effective date of the 1972 amendments to Title VII, which extended Title VII's prohibition of discrimination to federal employment. It is settled that the 1972 amendments do not apply retroactively to discrimination by federal agencies unless an administrative or district court proceeding was pending on the effective date. Brown v. Turner, 659 F.2d 1199, 1201 (D.C.Cir. 1981).

Paige claims that dismissal is inappropriate because he has alleged that

That allegation of a continuing discriminatory employment practice does state a cause of action under Title VII (Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 717-18, 725 (D.C.Cir.1978)) but it does not save the Paige claim. The fact is that this plaintiff filed that identical claim as a separate Title VII action. Paige v. United States, C.A. No. 80-2277 (D.D.C.). That action was dismissed with prejudice on January 23, 1981, and Paige's motion for relief from judgment was denied on May 15, 1981. Paige, who has had his day in court, may not continue to relitigate his claim with the hope that some day he will be successful.

VII

William Scott filed a separate lawsuit in the United States District Court for the Southern District of New York prior to his participation in the instant action in which he made the same claims that he makes here. Scott v. Bell, No. 77 Civ. 3369 (Wk). The court there dismissed the action with prejudice on July 27, 1978, and this dismissal was subsequently affirmed by the Court of Appeals for the Second Circuit on March 2, 1979 (No. 78-6166).14 This prior action bars Scott from relitigating his claims of employment discrimination in this Court.15

VIII

The scattershot approach used in this complaint, without consideration of rules of law and procedure, whether judicial or administrative, inevitably leads to the result that most of the claims must be dismissed. Moreover, in addition to the procedural defects, many of the claims suffer from lack of substantive merit (as found both by the EEOC and by the other courts which have had occasion to pass upon them). The motion for partial summary judgment will be granted.