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WARREN v. VETERANS HOSP.

September 24, 1974

Louise WARREN
v.
VETERANS HOSPITAL


Broderick, District Judge.


The opinion of the court was delivered by: BRODERICK

BRODERICK, District Judge

 Plaintiff, Louise Warren, a non-lawyer pro-se litigant, filed a complaint under Section 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16, alleging that discrimination delayed her from obtaining employment with the Veterans Administration Hospital in Philadelphia, Pennsylvania. Ms. Warren, who is black, is presently employed as a nurse with the Veterans Hospital. She is seeking back pay for the period from September 1972 to February 12, 1973, the time that plaintiff contends her appointment as a nurse was delayed by discrimination based on her race or her color.

 Plaintiff originally filed an Equal Employment Complaint with the Veterans Administration Hospital. The matter was fully investigated by the hospital on March 20, 21, 22 and 23 of 1973. On April 2, 1973 the case was reviewed, and on April 3, 1973 the hospital recommended disposition of the complaint with a finding of no discrimination.

 Plaintiff then asked for and was afforded a full hearing by an Equal Employment Opportunity Complaints Examiner. The agency adopted the recommendation of the examiner that there was no evidence of racial discrimination against Ms. Warren. Plaintiff appealed the agency decision to the Board of Appeals and Review of the U.S. Civil Service Commission in Washington, D.C. This Board, in an opinion dated October 31, 1973, found that a review of the record disclosed no evidence of racial discrimination. Plaintiff came to this Court on December 19, 1973 pursuant to 42 U.S.C. § 2000e-16(c), which affords a complainant the right to institute a "civil action" in the United States District Court whenever the complainant feels "aggrieved" by the final decision of the Commission.

 The government filed a motion for summary judgment contending that, based upon the administrative record, no genuine issue of fact existed. The motion raised the issue of the type of "civil action" plaintiff is to be afforded in the U.S. District Court pursuant to 42 U.S.C. § 2000e-16(c).

 Section 2000e-16(c) affords a federal employee the right to institute a civil action in U.S. District Court but does not state whether the District Court must grant a de novo trial. See McCreesh v. Berude, 385 F. Supp. 1365 (E.D.Pa.1974). The district courts which have faced the issue of whether a de novo trial is mandated have reached conflicting results. At least two courts have concluded that Section 2000e-16(c) requires a trial de novo in all cases where an aggrieved government employee institutes such a civil action. Henderson v. Defense Contract Administration Services Region, New York, 370 F. Supp. 180 (S.D.N.Y.1973); Thompson v. United States Dept. of Justice, Bureau of Narcotics and Dangerous Drugs, 360 F. Supp. 255 (N.D.Cal.1973). The majority of our U.S. District Courts have, however, reached the conclusion that a trial de novo is not mandated in all government employee cases, but that the grant of a de novo trial rests in the sound discretion of the trial judge. Hackley v. Johnson, 360 F. Supp. 1247 (D.C.D.C.1973); Johnson v. United States Postal Service, 364 F. Supp. 37 (N.D.Fla.1973); Handy v. Gayler, 364 F. Supp. 676 (D.Md.1973); Tomlin v. United States Air Force Medical Center, 369 F. Supp. 353 (S.D.Ohio 1973); McCreesh v. Berude, C.A. 73-1098 (E.D.Pa.1974).

 The majority of the cases indicate that the disposition of the matter by the District Court depends upon an individual assessment of the administrative record in each case. Judge Gesell, in Hackley, discussed the Congressional intent in enacting Section 2000e-16 and concluded that it was the intention to retain the Civil Service Commission as the main arm of enforcement and that the U.S. District Court was to exercise a supervisory role over the administrative process. He concluded that the supervisory role for the Court would avoid unnecessary duplicity and would permit the developing expertise of the Civil Service Commission to continue, with the court retaining ultimate discretion to proceed in whatever manner it deemed appropriate.

 
The trial de novo is not required in all cases. The District Court is required by the Act to examine the administrative record with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence in the record, no new trial is required. If this exacting standard is not met, the Court shall, in its discretion, as appropriate, remand, take testimony to supplement the administrative record, or grant the plaintiff relief on the administrative record. Hackley, supra, 360 F. Supp. at 1252.

 Such an approach best effectuates the ends of justice and avoids the unnecessary duplication inherent in a trial de novo. We agree with the well-reasoned opinion of our colleague, Judge Van-Artsdalen, in McCreesh, that the Court should have the option, after a careful study of the administrative record, to affirm the administrative record, to take additional testimony to supplement the administrative record, to remand for the taking of additional testimony, to grant a trial de novo, or to grant relief to the aggrieved government employee on the basis of the administrative record.

 This Court has carefully reviewed the full transcript of an extensive hearing held by an Equal Employment Opportunity Commission Examiner and the opinion rendered by the U.S. Civil Service Commission Board of Appeals and Review. In addition, this Court held a hearing on May 8, 1974 at which time plaintiff, Ms. Warren, was asked if she wished to present additional evidence. She replied that she did not. She further stated that she had presented all her evidence at her hearing before the Equal Employment Opportunity Examiner. *fn1" This Court finds that since the plaintiff has no additional evidence to offer and since this record is full and complete, a trial de novo is not called for in this case. This Court further finds from a review of the record in this case that an absence of discrimination is affirmatively established by the clear weight of the evidence, and we, therefore, are granting the defendant's motion for summary judgment.

 The record in this case shows the facts to be as follows:

 In July of 1972 Ms. Warren answered an advertisement in a newspaper soliciting applications for nurses at the Veterans Hospital in Philadelphia. On August 8th she received an application form from the hospital, which she completed and returned to the hospital. She then arranged for a personal interview at the hospital on August 24, 1972, at which time she was instructed to bring with her a copy of her discharge papers from the Army Nurse Corps. During the interview Ms. Warren was informed that a physical examination would be required. She elected to have the physical performed by her own physician, a procedure which was permissible. On August 29, 1972 Ms. Warren returned her physical examination form. The hospital determined that the physical examination form had not been completed in that it did not contain the results of a complete blood count and a cardiogram. She decided to have these tests performed at the V.A. Hospital. On September 20, 1972 the Chief Cardiologist at the hospital gave Ms. Warren a complete blood count and cardiogram. As a result of these tests it was determined that additional tests were necessary. The additional tests were administered on October 3, 1972. On October 17, 1972 Ms. Warren was notified that the hospital was unable to employ her because she did not meet the physical requirements. On January 3, 1973 Ms. Warren took another physical examination at the hospital. She passed this second physical examination, and on January 11, 1973 was notified to report for work on January 21, 1973 and was requested to fill out a Standard Form 85, "Data for Non-Sensitive or Non-Critical Position." Ms. Warren stated that she was unfamiliar with this form and refused to fill it out. She advised the hospital that she would not report for work on January 21st and explained that ...


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