Patton v. Brown

95 F.R.D. 205, 33 Fair Empl. Prac. Cas. (BNA) 529, 1982 U.S. Dist. LEXIS 14478
CourtDistrict Court, E.D. Pennsylvania
DecidedSeptember 3, 1982
DocketCiv. A. No. 79-1212
StatusPublished
Cited by4 cases

This text of 95 F.R.D. 205 (Patton v. Brown) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Patton v. Brown, 95 F.R.D. 205, 33 Fair Empl. Prac. Cas. (BNA) 529, 1982 U.S. Dist. LEXIS 14478 (E.D. Pa. 1982).

Opinion

MEMORANDUM AND ORDER

GILES, District Judge.

In this race discrimination suit brought pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 (1976 and Supp. IV 1980), plaintiff, a black female employed at the Philadelphia Defense Industrial Supply Center (DISC), has moved for certification of a class consisting of all past, present and future black employees and applicants for employment at DISC, as well as all blacks who would have applied but for the defendants’ allegedly discriminatory practices. Jurisdiction is properly based upon 42 U.S.C. § 2000e-5(f)(3) (1976).

Defendants, Harold Brown, former Secretary of Defense, and Gerald J. Post, Director of Defense Logistics Agency, oppose the motion asserting that a class action is barred since plaintiff did not exhaust class complaint remedies at the administrative level. Alternatively, defendants contend that the prerequisites to maintaining a class action under Federal Rule of Civil Proee[206]*206dure 23(a) have not been met. Because I find that the failure to exhaust administrative remedies is fatal to the motion, I do not reach the alternative ground advanced for the motion’s denial.

Background

Prior to September 28,1975, plaintiff was employed as a GS-5 at the Marine Corps Supply Activity in Philadelphia. On that date, the agency closed and she received a lateral transfer to DISC, a field activity of the Defense Logistics Agency. At DISC she filled a clerk position in the Directorate of Engineering and Standardization (DISC-ED a newly formed department. In October, 1977 a GS-7 position for processing unit supervisor, a newly classified job, became available. Plaintiff and others applied for it. On November 28, 1977, plaintiff was notified that a white female counterpart had been awarded the job. Under the regulations applicable at the time, she immediately initiated an individual race discrimination complaint with her EEO counselor claiming that the white employee had been given more relevant on-the-job training and that plaintiff had been deprived of training opportunity. This individual complaint formed the basis of the formal charge filed March 17, 1978 which essentially asserted disparate treatment. She complained in a later affidavit submitted in support of the charge that black females as a group were underrepresented numerically in DISC-E, were not specifically covered in the DISC Affirmative Action Plan and that certain supervisors and senior personnel were prejudiced and held discriminatory attitudes towards black individuals and black women in particular. In this affidavit she sought, in addition to her request for back pay, training and promotion, a directive that discriminatory practices against females be prohibited and that action be taken to correct underrepresentation of black females in the work force of DISC-E.

Ultimately, the Agency found no credible evidence to support plaintiff’s allegations that she was denied a promotion due to race. However, the agency determined that she had not received adequate training and therefore found her entitled to two priority considerations for promotion to a GS-7 position within DISC. The Agency decision was received by plaintiff and her counsel on March 5, 1979. Plaintiff then filed this complaint, both individually and on behalf of a class, alleging racial employment discrimination against blacks.

There is no question on this record that plaintiff properly filed and prosecuted an individual grievance on her own behalf. However, it is equally clear that she never filed a class claim at the agency level. Thus, the issue squarely presented is whether a plaintiff who .files a Title VII class action complaint has exhausted her administrative remedies by filing an individual, rather than a class complaint of discrimination at the agency level.

Section 717(c) of the Civil Rights Act provides the exclusive judicial remedy for federal employees aggrieved by discriminatory employment practices. Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). This section also imposes certain preconditions to bringing such a civil action, including initial recourse' to the agency that has allegedly discriminated against plaintiff. Id. at 832, 96 S.Ct. at 1967.1

Regulations promulgated pursuant to section 717(b) of the Act provide procedures for processing class action complaints of discrimination. 5 C.F.R. § 713.601—.643 (1978), now 29 C.F.R. §§ 1613.601-.643 [207]*207(1981). These procedures differ markedly from those which govern the filing of individual complaints. 5 C.F.R. §§ 713.-201 — .283 (1978), now 29 C.F.R. §§ 1613.-201-.283 (1981).2

For example, in filing a class complaint, the charging party must declare that she purports to be the representative of a specific class and must specify that the class meets the requirements of numerosity, typicality and commonality and that she is an adequate class representative. 29 C.F.R. § 1613.601. The complaint must specify and describe in detail the agency personnel policy or practice giving rise to the complaint. 29 C.F.R. § 1613.603. The complaint is reviewed by a complaints examiner to ascertain if it meets the class complaint prerequisites and makes a recommendation to the agency to accept, reject or cancel the complaint. § 1613.604. If the complaint is accepted, the agency must notify all class members of the existence of the complaint, their right to opt out and the method of doing so, and must give an explanation of the binding nature of the final decision or resolution of the complaint. § 1613.605. Thereafter, investigation is undertaken by an appointed agency representative at an agency level commensurate with the class complaint accepted. § 1613.608. There are provisions for resolution of the complaint during the investigative process with notice to the class. § 1613.609. If not resolved, a hearing is held on the complaint and a report of findings and recommendation is made to the agency which shall issue a decision. § 1613.610-611. The class receives notification of the decision and of the required corrective action, if any. The affected agency must attempt to eliminate any personnel practice or policy found to be discriminatory and provide individual corrective action for all affected class members. § 1613.614. Aggrieved class members have a right to appeal to the Office of Review and Appeals. § 1613.631.

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Cite This Page — Counsel Stack

Bluebook (online)
95 F.R.D. 205, 33 Fair Empl. Prac. Cas. (BNA) 529, 1982 U.S. Dist. LEXIS 14478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patton-v-brown-paed-1982.