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RUSSELL v. JOHNSON

January 6, 1975

Beverly J. RUSSELL
v.
Donald JOHNSON, Administrator, Veterans Administration


Scalera, District Judge.


The opinion of the court was delivered by: SCALERA

This civil rights action filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., as amended by § 717 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16, comes before the court on defendant's motion for summary judgment. Plaintiff, a former nurse anesthetist for the Veterans Administration, alleges that she was discharged because of racial discrimination.

 I

 The facts are undisputed. Plaintiff was first employed by the VA on December 8, 1969 as a nurse anesthetist under a three-year probationary period of employment pursuant to 38 U.S.C. § 4106. By letter on November 19, 1971, plaintiff's supervisor, Helen Cronin, Chief Nurse Anesthetist, recommended that plaintiff's employment should be terminated and that the Professional Standards Board should review plaintiff's performance. On December 3, 1971, Dr. Bulent Kirimli, Chief of Anesthesia, evaluated plaintiff's professional conduct and concluded that plaintiff should be disqualified from continued employment as a nurse anesthetist. And on December 28, 1971, by memorandum, plaintiff was advised that she would not be assigned to her normal operating duties pending clarification of her status.

 In response to Miss Cronin's and Dr. Kirimli's actions, plaintiff on January 3, 1972 consulted an Equal Employment Opportunity (EEO) Counselor, John Morris, concerning the prospect of filing a racial discrimination complaint. The EEO Counselor filed a report in which he concluded that plaintiff's proposed discharge was the result of a personality conflict between plaintiff and the operating room staff and not the result of any racial discrimination.

 The Professional Standards Board at the VA Hospital, Pittsburgh, recommended on January 11, 1972 that plaintiff be terminated because of her incompatibility with others in the Anesthesiology Department. In Washington, D.C., on February 16, 1972, the Professional Standards Board at the VA Central Office issued an opinion concurring in the findings of the Pittsburgh Professional Standards Board, yet suggesting that because plaintiff's technical ability had been satisfactory, she should be administratively transferred to another location. Plaintiff declined a transfer, without change in grade or salary, to the VA Hospital in Cleveland, Ohio, because she desired to remain in the Pittsburgh area. Plaintiff then declined a transfer to the Neuropsychiatric Section of Pittsburgh's VA Hospital. Having refused to accept either of these two transfers, the plaintiff was discharged from the VA in accordance with the appropriate administrative procedures.

 Plaintiff filed a formal complaint with the VA alleging that she had been racially discriminated against by Dr. Kirimli and Miss Cronin. The complaint was referred to the Civil Service Commission, which appointed EEO Appeal Examiner, Ronald Tiberio, to conduct a hearing on plaintiff's charge. The hearing was held on June 6-8, 1972, at which a total of 17 witnesses were called by complainant's representative and a total of 26 exhibits were accepted and made part of the administrative record. On July 28, 1972, the Civil Service Commission issued its findings, analysis, and recommended decision in which it was concluded that no racial discrimination occurred in plaintiff's discharge.

 Thereafter, plaintiff filed this action.

 II

 The critical issue herein is whether the "civil action" referred to in 42 U.S.C. § 2000e-16 *fn1" grants to a federal employee the right to a trial de novo in this court or only the right to a review of the administrative record. We are of the opinion that 42 U.S.C. § 2000e-16 does not entitle a federal employee to a trial de novo. After a review of the legislative history *fn2" of this section of the 1972 Act and the cases *fn3" concluding that no trial de novo is required, we hold that the plaintiff has no right to a trial de novo.

 Plaintiff's brief refers the court only to the case of Thompson v. Department of Justice, B.N.D.D., 360 F. Supp. 255 (N.D.Calif.1973) for the proposition that a trial de novo is required. We note, however, that subsequent to the date of plaintiff's brief, Judge Wollenberg in Thompson v. Department of Justice, B.N.D.D., 372 F. Supp. 762, 763 (N.D.Calif.1974) reversed his original decision and ruled that upon consideration of Hackley v. Johnson, supra, and Handy v. Gayler, supra, there was no right to a trial de novo.4

 Of the cases concluding that a federal employee has no right to a trial de novo, we are impressed by the reasoning expressed in Spencer v. Schlesinger, supra, 374 F. Supp. at 844-845:

 
"There is ambiguous language in the legislative history which lends support to the argument . . . that employees of the Federal Government are to be treated in all respects the same as employees in the private sector, including a statutory right to a trial de novo. Such an argument, however, does not withstand close scrutiny.
 
"The fact is that federal employees and employees in the private sector are treated differently by Congress under Title VII. In the case of the private employee, Congress designated the Equal Employment Opportunity Commission (EEOC) to settle his complaint, but in the case of the federal employee Congress chose another route -- i.e., it designated the Civil Service Commission (CSC) to consider the complaint. Where the voluntary informal efforts within the EEOC were unsuccessful in the private sector Congress gave the private employee immediate access to the Court and a trial de novo ; but where the federal employee felt aggrieved, Congress designated CSC to mediate the dispute after the agency had been given the opportunity to put its own house in order. Then and only then Congress allowed the federal employee, where aggrieved on discrimination grounds, to seek review in a district court of the prior administrative ...

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