The opinion of the court was delivered by: GORBEY
Defendant has filed a motion to dismiss or in the alternative for summary judgment. Attached thereto is a certified copy of the administrative record of the Environmental Protection Agency.
The plaintiff's complaint alleges that his dismissal from employment with the Program Planning and Development Assistance Branch of the Environmental Protection Agency's regional office in Pennsylvania was the result of discrimination based upon his race or color in violation of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000 et seq., and 42 U.S.C. § 1981 et seq. The relief requested is a declaratory judgment as to his rights; a permanent injunction to restrain alleged discriminatory practices with respect to conditions and privileges of employment; reinstatement and back pay.
The record shows that plaintiff began serving in the position of Chief, Program and Development Assistance Branch (Program Manager GS-340-14) subject to satisfactory completion of a one year probationary period from August 13, 1972. On July 19, 1973, plaintiff received notice that he was to be dismissed on August 3, 1973, because of failure to have performed satisfactorily during his probationary period.
Thereafter, on July 20, 1973, plaintiff submitted to his Regional Equal Employment Opportunity counselor a letter in which he claimed that his discharge was due to racial discrimination. The record further shows that the Equal Employment Opportunity counselor instituted a complete and thorough investigation, conducting in the course thereof several oral interviews, resulting in written statements duly sworn to by the respective writers.
On August 3, 1973, the counselor notified plaintiff that her investigation revealed that the dismissal was not based on racial discrimination, but was a result of poor work performance. On the same date plaintiff filed a formal complaint of discrimination. A further investigation of the claim took place and on December 28, 1973, plaintiff was notified that the discharge was not the result of racial discrimination.
On January 8, 1974, by a letter from his attorney, plaintiff requested a Civil Service Commission hearing, after which, by letter dated January 14, 1974, the request was withdrawn. By certified mail, dated February 27, 1974, plaintiff was notified by the Deputy Regional Administrator of the final determination that there was no racial motivation involved and again advising plaintiff of his right to appeal to the Civil Service Commission's Board of Appeals and Review, within 15 calendar days, or to appeal to the Federal District Court within 30 days. On March 12, 1974, plaintiff instituted this action.
By the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16(c), Congress waived the United States Government defense of sovereign immunity by authorizing the filing of civil actions by federal employees aggrieved by personnel actions against them. Primary responsibility for enforcement of the Act's provisions lies with the agencies involved and the Civil Service Commission (42 U.S.C. § 2000e-16(b)). Pursuant to the statute, actions may be brought in Federal District Courts only "after either a final order by his [the aggrieved federal employee's] agency, or a decision or order in any personnel action in which the issue of discrimination on the basis of race, color, religion, sex or national origin has been raised by the aggrieved person."
There is a difference of opinion between the parties with respect to the scope of review of the United States District Court. Defendant contends that the District Court is limited to a review of the administrative record, whereas the plaintiff contends that there is a right to a trial de novo.
Reference to the Congressional Record indicates that Congress intended in the 1972 Amendment to afford the judicial review accorded to previously reviewable personnel decisions. "Finally, written expressly into the law is a provision enabling an aggrieved Federal employee to file an action in the District Court for a review of the administrative proceeding record after a final order by his agency or by the Civil Service Commission if he is dissatisfied with that decision." [92d Cong., 2nd Sess., Congressional Record, S.2280 (February 22, 1972) (remarks of Senator Williams)]. Accordingly, there is now ample authority to establish that the judicial review provided for in the 1972 Amendment is limited to a review of the record of the administrative proceeding. HANDY v. GAYLER, 364 F. Supp. 676 (D. Md. 1973); HACKLEY v. JOHNSON, 360 F. Supp. 1247 (D.D.C. 1973).
In the recent case, SPENCER v. SCHLESINGER, 374 F. Supp. 840 (D.D.C. filed April 23, 1974) the court stated:
"There is conflict in reported cases but the Court is persuaded that it was the clear intent of Congress to accord federal employees, alleging discrimination, evidentiary hearings at the agency level, and thereafter to afford a review of the administrative record in a district court after exhaustion of all available administrative remedies." (citations omitted)
It is significant that the California court which held in THOMPSON v. DEPT. OF JUSTICE, 360 F. Supp. 255 (N.D.Ca. 1973) that a plaintiff was entitled to a trial de novo on a charge of racial discrimination, reversed itself on reconsideration, relying upon HACKLEY v. JOHNSON, supra; HANDY v. GAYLOR, supra, and WILLIAMS v. MUMFORD, 6 EPD P 8785. The court, after finding that the ...