Stanley Siegel v. Juanita M. Kreps, Individually and as Secretary of the United States Department of Commerce

654 F.2d 773, 210 U.S. App. D.C. 58, 1981 U.S. App. LEXIS 14377, 25 Empl. Prac. Dec. (CCH) 31,718, 25 Fair Empl. Prac. Cas. (BNA) 672

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 13, 1981
• Docket: 77-1549
• Status: Published

Opinions

HAROLD H. GREENE, District Judge.

This is an appeal from the dismissal of an action brought by a federal employee alleging age discrimination, religious discrimination, and retaliatory discharge. Although the administrative history of this case is somewhat involved, the law is clear.

On December 24, 1975, appellant Stanley H. Siegel, an employee of the United States Bureau of the Census, instituted this action against the Secretary of Commerce, the Director of the Bureau of the Census, and the United States, alleging employment discrimination and wrongful discharge. The first count of the complaint alleged nonselection for training programs, allegedly on account of religion and age in violation of the Age Discrimination in Employment Act of 1967,¹ Title VII of the Civil Rights Act of 1964,² and the First Amendment to the Constitution. The second count alleged that appellant’s then pending discharge from federal employment was due to his religion and age and in retaliation for an age discrimination complaint which he had previously filed, in violation of the Age Discrimination in Employment Act, the Administrative Procedure Act,³ and the First and Fifth Amendments.

After limited discovery, appellees filed a motion to dismiss the Title VII claims on various grounds. These included the contention that with respect to some of his claims appellant had not filed a formal administrative complaint; that with respect to others he had not complied with requisite time limits for filing or provided notice of his intent to sue; and that still another claim arose prior to the effective date of the relevant statute.⁴

The District Court, treating the motion to dismiss as a motion for partial summary judgment (P.R.Civ.P. 54(b)), dismissed the complaint with respect to the alleged denial of training due to appellant’s religion and the allegations that appellant’s discharge was retaliatory and discriminatory.⁵ This appeal followed.

I

Appellant, who is of the Jewish faith, began employment with the Department of Commerce, Bureau of the Census, in December, 1968, as an electronics technician in grade GS-5. On September 24, 1970, he filed an administrative equal employment opportunity complaint alleging that he had been discriminatorily denied promotion and training opportunities because of his religion. Pinal agency action on his complaint, by the issuance of a Board of Appeals and Review decision upholding an earlier finding of no discrimination, occurred on August 10, 1971. Appellant instituted no other administrative proceedings alleging religious discrimination at any time thereafter.

In the Spring of 1974, appellant discussed with one Leverne Brugger of the Complaints Section of the Civil Service Commission his complaint that he was still being denied training opportunities on religious grounds. Brugger took him to see Paul Cerwonka, a supervisory appeals examiner for the Civil Service Commission Board of Appeals and Review.

The events of the meeting between appellant and Cerwonka are the subject of some dispute. According to appellant, he told Cerwonka that he wished to file a complaint based upon religious discrimination. In response, Cerwonka allegedly informed him that he had exhausted his administrative remedies with respect to religious discrimination in 1971; that a complaint was now foreclosed; and that he was limited to a complaint based on alleged age discrimination. Cerwonka, on the other hand, stated both by way of an affidavit and in oral testimony at the hearing on the motion that he does not remember conferring with appellant; that his responsibility at the time was to consider the review of agency decisions in discrimination cases rather than to deal with new complaints; and that his practice was to refer a person who wished to initiate a complaint to that person’s agency or to the Office of Federal Equal Employment Opportunity for proper counselling in that regard. Cerwonka conceded that he might have advised appellant that his remedies with respect to his 1970 complaint had been exhausted, but he claimed to be certain that he would not have told appellant that a complaint based on recent religious discrimination was unavailable to him.

Shortly thereafter, on April 22, 1974, appellant filed an administrative complaint alleging that he was being denied training opportunities because of his age, but on July 1, 1975, he was informed that the complaint was rejected for lack of evidence. Appellant appealed that decision to the Civil Service Commission, and while that appeal was pending,⁶ he filed the civil action which is before us on appeal.

Also during the pendency of the administrative proceedings involving the alleged denial of training opportunities, appellant met several times with his supervisors to discuss his training problem. Appellant had previously been warned that should he repeat acts of misconduct in which he had engaged from time to time in the past⁷ he might be removed from the federal service. During one of the meetings with his supervisors he apparently again engaged in offensive and abusive conduct, and on November 21, 1974, he was informed by the Bureau of the Census that his federal employment would be terminated.

An appeal from the removal action was taken to the Federal Employee Appeals Authority of the Civil Service Commission. That appeal was limited to two claims— that the removal was flawed by procedural defects and that the action constituted retaliation for his previous complaints against the agency. The Appeals Authority denied the appeal in a final decision dated October 14,1975, which rejected his contentions and substantively found that he had engaged in various acts of misconduct.

Although the complaint in the court below raised several other issues (see note 5, supra), the only questions remaining here relate to appellant’s claim of religious discrimination with respect to the denial of training opportunities, and his claims that his discharge was the product of retaliation and of religious and age discrimination.

II

Title VII of the Civil Rights Act of 1964 requires the exhaustion of certain administrative remedies as a prerequisite to a court action to remedy alleged racial, sexual, or religious discrimination. The principal exhaustion requirement is that the complainant must initially seek relief in the agency which has allegedly discriminated against him. Brown v. General Services Administration, 425 U.S. 820, 831, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976).

Appellant failed to pursue any of the administrative remedies available to him with respect to the claim that in 1974 he was denied training because of religious discrimination. After the agency denied relief on his 1970 religious discrimination complaint he filed no further complaints with anyone alleging religious discrimination in connection with training denials, whether during that year⁸ or at any time thereafter. Indeed, that issue was raised for the first time in this civil action. Thus, on the basis of the plain words of the statute ⁹ and under the regulations,¹⁰ the action in the court below was subject to dismissal.

Appellant claims that he was given erroneous advice by Cerwonka, and that but for that advice he would have filed a timely complaint with the agency. At a minimum, it is claimed, there is a disputed issue of fact on the Cerwonka issue and consequently on the question of whether his untimely filing should be excused on account of equitable considerations. There are several flaws in that argument.

Exhaustion of administrative remedies has generally been regarded as a prerequisite to the maintenance of a federal employee’s Title VII discrimination suit, and absent special circumstances, failure to exhaust calls for a dismissal of the action. League of United Latin American Citizens v. Hampton, 163 U.S.App.D.C. 283, 501 F.2d 843 (1974); Jordan v. United States, 522 F.2d 1128, 1132 (8th Cir. 1975); Spencer v. Schlesinger, 374 F.Supp. 840, 843-844 (D.D.C.1974). Appellant relies on such decisions as Coles v. Penny, 174 U.S.App.D.C. 277, 531 F.2d 609 (D.C.Cir.1976); Bell v. Brown, 181 U.S.App.D.C. 226, 557 F.2d 849 (1977); and Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C. 322, 567 F.2d 429 (1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978), to support his contention that his failure to exhaust does not compel dismissal. However, these cases involved only the question whether the time limitations¹¹ of the statute and the regulations may be waived on account of equitable considerations. Appellant’s lawsuit is defective not because he failed to file on a timely basis but because he failed to exhaust or even to begin his administrative remedies.¹²

The contention that a timely administrative complaint was not filed due to advice from Cerwonka does not help appellant. The District Court considered affidavits and testimony on the issue of advice given to appellant by Cerwonka, and implicit in its dismissal of the claim are findings that appellant was not improperly advised by Cerwonka, or that, if he was given erroneous advice, he was not justified in relying thereon. On the record before us, that conclusion was correct.

Civil Service and departmental regulations direct employees to initiate complaints with a designated agency equal employment opportunity counsellor. 5 C.F.R. 713.-213(1978); D.C.A.O. 202-713 § 213. At the time of his meeting with appellant, Cerwonka was not an EEO counselor but a supervisory appeals examiner with the Civil Service Commission, concerned with the review of discrimination complaints on appeal rather than the institution of new complaints. It may be that appellant can be charged with constructive knowledge of these departmental regulations which are published and available to the general public upon request, and he may certainly be regarded as having knowledge of these regulations on a more concrete basis.

When appellant filed his first discrimination complaint with the agency in 1970, he followed the correct procedure, and thereafter he was involved in several administrative proceedings regarding his status in the federal service. Appellant was thus generally familiar with the process. Under no circumstances can the exhaustion and timely filing requirements be accurately described with respect to this appellant as doctrines which “may prove to be insurmountable stumbling blocks to the aggrieved federal employee who is, quite understandably, inexperienced and unknowing with respect to the mechanics of a discrimination action.” ¹³ In short, special equitable considerations which might cause us to consider whether the general barrier could be waived are conspicuously absent in this case.

We conclude that the District Court was correct in its determination that there was no genuine issue of material fact on the issue of whether appellant was improperly advised by Cerwonka to his detriment.¹⁴

Ill

Appellant’s claims regarding his discharge from employment likewise lack merit.

As noted, appellant asserted in the District Court and he asserts here that his discharge was the product of religious and age discrimination and that it constituted retaliation for his previous discrimination complaints. However, the only claims he raised in the administrative proceedings following his discharge were that improper procedures had been employed¹⁵ and that the discharge constituted a retaliatory act. No mention was made at any stage of those proceedings of either religious or age discrimination. These issues are therefore foreclosed on ■ exhaustion of administrative remedies grounds. Brown v. General Services Administration, supra; Bunch v. United States, 548 F.2d 336, 340 (9th Cir. 1977); Meisch v. U. S. Army, 435 F.Supp. 341 (E.D.Mo.1977), aff’d., 566 F.2d 1178 (8th Cir. 1977).¹⁶

Appellant did not pursue the appropriate remedies with respect to his retaliation claim. He filed an appeal of his removal action with the Federal Employee Appeals Authority pursuant to 5 U.S.C. §§ 7501 and 7512 and 5 C.F.R. § 752.201-203. The Appeals Authority considered this appeal and rejected it, stating that his removal did not constitute a retaliatory action and that it was substantively justified. Upon review of that decision under the Administrative Procedure Act, the courts are limited to deciding whether there is evidence of substance in the administrative record which supports the agency’s view of the matter. Goldwasser v. Brown, 135 U.S.App.D.C. 222, 228 n.4, 417 F.2d 1169, 1175 n.4 (1969), cert. denied, 397 U.S. 922, 90 S.Ct. 918, 25 L.Ed.2d 103 (1970).

Although the District Court did not make a specific finding on this issue, the record and the decision of the Federal Employee Appeals Authority were before it on the summary judgment motion. The court’s conclusion that there was no genuine issue of material fact on this issue and that defendants were entitled to judgment as a matter of law may appropriately be regarded as a determination that there was substantial evidence to support the agency finding. Our review of the record convinces us that this determination by the court below was not clearly erroneous and that the court correctly applied the law in determining that defendants were entitled to judgment.

For the reasons stated, the judgment of the District Court is

Affirmed.

1 . 29 U.S.C. § 633a(c) (1970).

2 . 42 U.S.C. § 2000e-16 (Supp. II 1972).

3 . 5 U.S.C. §§ 701-706 (1970).

4 . Claims arising under the Equal Employment Opportunity Act of 1972 (42 U.S.C. § 2000e-16 (Supp. II 1972)) occurring prior to the effective date of that statute may be considered only if they were the subject of a formal administrative complaint pending on that date. Sperling v. United States, 515 F.2d 465, 473-74 (3d Cir. 1975).

5 . The only remaining claim, based on the alleged denial of training because of age discrimination, was dismissed by mutual agreement of the parties, with the approval of the court. The court also dismissed the complaint insofar as it claimed jurisdiction under provisions other than Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, and insofar as Rogers Morton and Vincent P. Barabba were being sued in their individual capacities. Appellant did not oppose these grounds for dismissal and they are not part of this appeal.

6 . Final action on the age discrimination complaint was a finding by the Commission of no discrimination rendered on February 17, 1976.

7 . The records show that in 1969, appellant was suspended for insubordination and for being absent without leave. In 1970, he had sought to meet with the Chairman of the Civil Service Commission, and when told that this was not possible, he characterized his supervisors as “louse,” “bum,” and “liar,” and threatened to kill one of them. In November, 1971, he was suspended for being absent without leave; in December 1971, he threatened bodily harm to a supervisor; in June, 1973 he was suspended for “unwarranted vilification” of an official and an attempt to bribe an official to induce him to fire appellant’s supervisors; and in January, 1974, he called an official of the Civil Service Commission to complain of a “conspiracy” in his department, and in the course of their conversation he again threatened to harm his supervisors.

8 . The judicial remedy provided by 42 U.S.C. § 2000e-16 is retroactively available only to those complaints whose administrative complaints were pending as of March 24, 1972, the date the amendments to Title VII of the Civil Rights Act of 1964 became effective. See Sperling v. United States, supra note 4. Appellant filed administrative complaints alleging religious discrimination on September 24, 1970, and the CSC Board of Appeals and Review took final agency action thereon on August 10, 1971. As of March 24, 1972, the effective date of 42 U.S.C. § 2000e-16, appellant had no administrative complaint alleging religious discrimination pending. Accordingly, appellant’s right to bring a civil action with respect to religious discrimination was not retroactively available based upon his 1970 administrative complaint.

9 . “Within thirty days of receipt of notice for final action taken by a department ... or after one hundred and eighty days from the filing of the initial charge with the department ... an employee ... if aggrieved by the final disposition of his complaint ... may file a civil action ...” 42 U.S.C. § 2000e-16(c).

10 . 5 C.F.R. §§ 713.214(a)(1), 713.281 (1978).

11 . A civil action may be filed only within thirty days of notice of final Civil Service Commission action, or after inaction by either the agency or the Commission for one hundred eighty days from the filing of the original discharge or the taking of an appeal. 42 U.S.C. § 2000e-16(b), (c), Hackley v. Roudebush, 171 U.S.App.D.C. 376, 520 F.2d 108, 126 (1975); Department of Commerce Administrative Order (D.C.A.O.) 202-713 §§ 212 et seq.; 5 C.F.R. 713.281 (1978).

12 . For a discussion of the distinction, see Coles v. Penny, supra, 174 U.S.App. at 281-82, 531 F.2d at 613-614.

13 . Appellant’s Brief, p. 10.

14 : Even if appellant had established a justifiable reliance on Cerwonka’s alleged erroneous advice, he would, at most, be entitled to a waiver of the time limits for the initiation of a complaint with the administrative agency rather than to the right to institute a civil action. Congress intended that administrative agencies should have an opportunity to consider a federal employee’s discrimination claim, because such a process promotes dispute resolution through accommodation rather than through litigation. Weise v. Syracuse University, 522 F.2d 397, 412 (2d Cir. 1975). While waiver of the time limits for initiating an administrative discrimination complaint through the administrative process pursuant to 5 C.F.R. § 713.-214(a)(4) might have been available to the appellant, he never requested such a waiver. Accordingly, we need not decide whether such a waiver, had it been requested, should have been granted.

15 . The procedural defects claim was not made in the District Court action and it is likewise not before us.

16 . Under the Age Discrimination in Employment Act, 29 U.S.C. § 633a(d), a civil action is precluded unless the individual first files an age discrimination complaint with the Civil Service Commission or notifies the Commission of his intention to file a civil action within one hundred eighty days after the unlawful practice occurred. Appellant did neither.