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HENRY v. SCHLESINGER

January 7, 1976

MARION L. HENRY, Plaintiff
v.
JAMES SCHLESINGER, et al. Defendants



The opinion of the court was delivered by: GREEN

 GREEN, District Judge

 Pending before this Court is defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment pursuant to Rule 56(c). For the reasons stated hereinafter, we deny defendants' motion as to Count I of the complaint, which alleges a violation of 42 U.S.C. § 1981, and Count III of the complaint, which alleges a violation of 42 U.S.C. § 2000e-16, and grant defendants' motion to dismiss as to Count II of the complaint, which is based on an alleged violation of 42 U.S.C. § 1983.

 Plaintiff is a Black female who resides in Philadelphia, is employed at the Defense Personnel Support Center ("Center") located in Philadelphia, and has been so employed since 1956. The Center is a subdivision of the Defense Supply Agency ("Agency"), an agency within the Department of Defense.

 Plaintiff names as defendants (former) Secretary of Defense, James R. Schlesinger, the Commanding Officer of the Center, Rear Admiral C. Bruce Smith, the Center, and the Agency. She alleges that the Center and the Agency have engaged in and continue to engage in acts and practices which unlawfully discriminate against her because of her race and sex in violation of 42 U.S.C. §§ 1981, 1983, and 2000e-16. She seeks to enjoin defendants from engaging in these acts and practices plus recover compensatory damages for injuries allegedly sustained as a consequence thereof. Jurisdiction is invoked pursuant to 28 U.S.C. § 1343(4).

 Plaintiff alleges the following facts in her complaint, which we accept as true for the purpose of deciding the motion to dismiss. From 1956, plaintiff has been in defendants' employ progressing from Grade Level WB-3 to her present classification, obtained in April, 1969, of clothing inspector Grade Level WB-9. Until 1969, clothing inspectors advanced to the WB-15 Grade Level and prior to 1969, WB-15 clothing inspectors were predominantly white and male. In 1969, WB-15 clothing inspectors were reclassified to WB-11, with no loss of pay or benefits, and a new clothing inspector Grade Level, WB-9, was created at pay and benefit levels below those of the new WB-11 Grade Level. Plaintiff contends that at the time of creation of the WB-9 clothing inspector Grade Level to the present, no substantial differences have existed between WB-11 and WB-9 in terms of the job summaries, descriptions and duties; and while classified as a WB-9 clothing inspector, plaintiff performs duties and responsibilities "identical to those of white, male co-workers classified as WB-11 clothing inspectors". Based upon her employment history, plaintiff claims she should have been classified at the WB-11 Grade Level since at least April 1969. Plaintiff further alleges that Black and female employees comprise, and at all relevant times have comprised, the majority of the WB-9 clothing inspectors at the Center. The majority of all WB-11's at all times have been white. The complaint recites that plaintiff initially complained of the classification system in July, 1973 and that notice of final action by the Agency rejecting her complaint was communicated to her by letter dated October 31, 1974, received by plaintiff on November 2, 1974. The instant action was filed on November 22, 1974.

 Count I of plaintiff's complaint alleges that the defendants' classification practices have been and are racially discriminatory against her in violation of 42 U.S.C. § 1981. Count II alleges that defendants' classification practices have been and are discriminatory against plaintiff on the basis of race and sex in violation of 42 U.S.C. § 1983. Finally, Count III alleges that defendants' classification practices have been and are discriminatory against plaintiff on the basis of race and sex in violation of 42 U.S.C. § 2000e-16.

 Defendants' motion to dismiss or in the alternative for summary judgment raises a number of issues with respect to the procedural aspects of a cause of action against the federal government for unlawful employment practices. We consider these issues seriatim.

 I.

 The first issue raised by defendants is whether or not Count II of plaintiff's complaint states a cause of action under 42 U.S.C. § 1983. *fn1" Clearly, state action is an element of a cause of action thereunder. *fn2" As plaintiff fails to allege state action in Count II of her complaint, we must grant defendants' motion to dismiss as to Count II of plaintiff's complaint. Braden v. University of Pittsburgh, 477 F.2d 1 (3rd Cir. 1973); Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973).

 II.

 We must decide, then, whether or not plaintiff states a cause of action under Section 717 with respect to those claims occurring subsequent to the effective date of that statute, in view of the fact that the classification system which allegedly discriminates against plaintiff was adopted prior to the effective date of the statute. Plaintiff contends, and we agree, that defendants' adherence to an alleged discriminatory classification system since the effective date of Section 717 is actionable under title VII. The fact that the alleged discriminatory classification system became operative in 1969 does not bar plaintiff from seeking relief from its present injurious effects. See, Dudley v. Textron, Inc., Burkart-Randall Division, 386 F. Supp. 602 (E.D. Pa. 1975); Commonwealth v. Glickman, 370 F. Supp. 724 (W.D.Pa. 1974). See also, Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (5th Cir. 1972); Henderson v. First National Bank of Montgomery, 344 F. Supp. 1373 (M.D. Ala. 1972); King v. Georgia Power Co., 295 F. Supp. 943 (N.D. Ga. 1968). Cf. Ettinger, supra, at 652.

 III.

 The next issue presented, which again refers to Count III of the complaint, is whether or not plaintiff has exhausted her administrative remedies under Title VII?

 Defendants argue that plaintiff never filed a formal complaint of discrimination with the Agency or Center as to her grade 9 classification, because the July, 1973 complaint was an oral presentation made by another employee on behalf of plaintiff to the Agency's EEO counselor and not a complaint within the meaning of 5 C.F.R. 713.214(a)(1). *fn5" Thus, it is argued, plaintiff failed to follow the applicable regulation requiring a timely written complaint.

  A federal employee is under no duty to appeal an agency's final action or decision to the Civil Service Commission. See, 42 U.S.C. § 2000e-16(c); Ettinger, supra, at 651-652 citing Sperling, supra. Therefore, said employee runs afoul of the exhaustion doctrine *fn6" only if he failed either to bring his complaint to the attention of the EEO counselor within the time limits prescribed by 5 C.F.R. § 713.214(a)(1)(i), or to timely raise in the administrative process the issues set forth in his complaint filed in accordance with 5 C.F.R. 713.214(a)(1)(ii). See, Ettinger, supra, at 651-653. If the record does not contain sufficient facts relevant to deciding either feature of the exhaustion issue, the district court must hold a hearing de novo on the issue; and at the hearing the court, in determining whether the time limitations have been satisfied, may consider such factors as allegations that the discrimination was continuous in nature. Id., at 652-653. If, however, the court finds that plaintiff did not resort to the EEO counselor within 30 days after the alleged discriminatory episode, "it should proceed to decide whether this failure to exhaust can be excused on any ground," such as plaintiff's ignorance of the applicable limitation periods. Id., at 652. See also, McKart v. United States, 395 U.S. 185, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969). Against this background, we consider the exhaustion issue raised by defendants in conjunction with the administrative record before us.

 The administrative record shows that in July, 1973 Mr. Clarence Cooper met on behalf of plaintiff with Mr. Samuel Mosely, an EEO counselor, concerning the complaints of plaintiff and others. *fn7" On August 21, 1973, an EEO counselor notified Mr. Cooper of the results of a "final counseling interview" and that he had "the right to file a COMPLAINT OF DISCRIMINATION WITHIN 15 CALENDAR DAYS AFTER RECEIPT OF THIS NOTICE". *fn8" Plaintiff did not file a formal complaint but rather sent a letter to the then Secretary of Defense, Elliot Richardson, on August 20, 1973 complaining of the EEO counselor's findings and the manner in which the investigation had been conducted up to that point. *fn9" In response to plaintiff's letter, the Deputy Assistant Secretary of Defense sent a memorandum to the Director of the Agency instructing him to

 
. . . inquire into . . . [plaintiff's] complaint and resolve problems indicated by such inquiry. Please communicate directly with the complainants and provide a copy of the results to this office for my review. ...

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