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.
The critical issue herein is whether the "civil action" referred to in 42 U.S.C. § 2000e-16
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
of this section of the 1972 Act and the cases
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.