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ETTINGER v. JOHNSON

March 24, 1976

LINDA ETTINGER, on her own behalf and on behalf of all others similarly situated
v.
DONALD E. JOHNSON, Director Veterans Administration, Washington, D.C. and S. W. MELIDOSIAN, Director Veterans Administration Center, Philadelphia, Pennsylvania



The opinion of the court was delivered by: GORBEY

GORBEY, J.

 This case comes before the court for the second time. The original complaint was filed on March 26, 1973, amended on May 30, 1973, on behalf of herself and others similarly situated, alleging sex discrimination in employment, seeking declaratory and injunctive relief and back pay.

 On August 28, 1974, plaintiff's present attorney, counsel of record since November 28, 1973, filed a motion to vacate judgment on the ground that he did not know that the administrative record of fifty-three pages, prepared by the Veterans Administration, had been filed in the clerk's office on October 29, 1973, as an attachment to defendants' motion to dismiss. In paragraph 3 of the motion to vacate judgment (docket entry no. 18) appears the allegation:

 
"Counsel for plaintiff aver that they were never notified of the existence of such a record or of the fact that such record was filed with this Honorable Court; counsel for plaintiff remained totally unaware of the fact that the administrative record was part of the record before this Honorable Court until so apprised by this Honorable Court's memorandum supporting its order of August 20, 1974."

 On September 5, 1974, the motion to vacate the judgment was denied (docket entry no. 20). A memorandum in support of the order was filed on the same date. It is stated in that memorandum:

 
"The record shows that on October 29, 1973, defendants filed a motion to dismiss and in the first paragraph of the memorandum in support of the motion stated:
 
'. . . (As) a part of the record here as set forth in the attached true copy of the Veteran's Administration report.' (Emphasis added.)
 
On July 8, 1974, defendants filed a response to plaintiff's motion to amend her complaint and designate the action as a class action. [docket entry no. 13] In the last paragraph on page 4 and continuing over on page 5, it is stated:
 
'. . . In the case at bar, the only findings made by the administrative agency were that the plaintiff had failed to file her complaint within the prescribed time limit. The court is presently limited in the scope of its judicial review to consideration of this administrative record.' (Emphasis added.)
 
Since the administrative report was a part of defendants' motion to dismiss, which was docketed on October 29, 1973 (docket entry no. 4), a copy of which was served on plaintiff's counsel, and reference to such administrative report was again made on July 8, 1974, as stated in the preceding paragraph, plaintiff's contention that her counsel was never advised or aware of the Veteran's Administration report is as untenable as it is void of merit."

 An appeal was duly taken by the plaintiff, and on June 18, 1975, the Circuit Court of Appeals in ETTINGER v. JOHNSON, 518 F.2d 648 (3d Cir. 1975) reversed and remanded the case for further proceedings with respect to the issue "exhaustion of remedies". This action was the result of the decision in SPERLING v. UNITED STATES, 515 F.2d 465 (3d Cir. 1975), in which the court ruled that federal employees who file an employment discrimination suit in the district court pursuant to 42 U.S.C. § 2000e-16(c) were entitled to a trial de novo. With respect to this court's denial of plaintiff's motion to vacate the judgment, the Circuit Court of Appeals, in footnote 6, page 650 stated:

 
"Ettinger also asserts that, even if she is not entitled to a trial de novo, the case should be remanded to the district court 'because the court abused its discretion in denying plaintiff's motion to vacate judgment where such judgment was summary and was based on a 53 page 'administrative record' the presence of which on the district court record was unknown to plaintiff's counsel . . . .' Because of our disposition of the appeal, we need not reach this issue."

 In the course of its opinion, the Court of Appeals wrote:

 In plaintiff's reply to defendants' memorandum of law contra plaintiff's motion for partial summary judgment, plaintiff stated at page 1, "First, careful and responsible textual analysis of the Opinion reveals that the Third Circuit Court of Appeals believed that plaintiff could satisfy the exhaustion requirement by either of two possible means".

 In other words, plaintiff is saying that the Circuit Court of Appeals has in effect ruled that a simple general allegation of "continuing discrimination" is sufficient to satisfy the exhaustion requirement. Neither the defendants nor this court agree with that interpretation. No amount of verbal gymnastics can obscure the fact that the issue before the court was whether plaintiff was entitled to a trial de novo in the district court. Having resolved that issue in favor of the plaintiff, the Circuit Court of Appeals is merely stating that the district court on remand is to consider the merits, if any, of plaintiff's contention that she has met the exhaustion requirement in either of two ways. Counsel conveniently overlooked the exact language of the court in the first three lines of the quotation in which it is stated that: "The district court may consider in the context of a more fully developed factual record, Ettinger's argument . .."

 Having interpreted the court's words as a determination that a mere "allegation of continuing discrimination" of itself is sufficient to meet the time requirements of the administrative regulations and therefore to satisfy the exhaustion of administrative remedies, the plaintiff cites numerous cases in its memorandum of law in support of plaintiff's motion for partial summary judgment (docket entry no. 27), all of which relate to alleged discrimination in the private sector, and none of which relate to alleged discrimination in the public sector.

 Since the administrative record, as well as the Circuit Court of Appeals Opinion, clearly indicate that, in general terms, "continuing discrimination" was alleged, if such allegation is sufficient, why would it be necessary to remand the case for a hearing de novo on the question of exhaustion, "in the context of a more fully developed factual record"? If the allegation is sufficient as plaintiff contends, why did the Court of Appeals write:

 
"Should the district court determine that Ettinger's recourse to the counselor was timely, it should proceed to trial de novo of those substantive allegations of discrimination . . ." Id. page 652.

 Also, if the allegation of "continuing discrimination" is sufficient as a matter of law, there would have been no occasion for the Court of Appeals to say:

 
"If, however, the district court finds that Ettinger did not report to the counselor within 30 days after an alleged episode of discrimination, it should proceed to decide whether this failure to exhaust can be excused on any ground, such as Ettinger's ignorance of the applicable limitation periods." Id. pages 652, 653.

 The "continuing discrimination" cases cited by plaintiff are clearly distinguishable because they relate to the private employment sector and therefore are not subject to the principle of sovereign immunity and the limitations thereon where the government is a party. See: PLACE v. WEINBERGER, 497 F.2d 412 (6th Cir. 1974); WILLINGHAM v. LYNN, 381 F. Supp. 1119 (E.D. Mich. 1974).

 The administrative record shows that plaintiff on November 17, 1972, consulted an Equal Employment Opportunity Counselor at the Veterans Administration Center (see 5 C.F.R. §§ 713.213 and 713.214) contending that she had encountered sex discrimination as a "continuing state of affairs" at the Center. These allegations were considered by the counselor as stating three specific complaints, all of which had occurred more than thirty days prior to the date of the complaint, and the most recent event occurred on April 30, 1972, some six and one-half months prior to the date of the complaint.

 Under Title 5 C.F.R. § 713.213(a), the counselor was required to complete his review of the claim within twenty-one days of the date of the complaint, which would be by December 8, 1972.

 The following appears from the affidavit of David Adelman, Equal Employment Opportunity Counselor, as an attachment to defendants' response to plaintiff's motion for partial summary judgment and defendants' cross-motion for summary judgment (docket entry no. 30):

 
"Following my investigation as to each of the plaintiff's three Complaints, I scheduled the final counseling session for December 8, 1972, but the plaintiff called me on December 6, 1972 and wished to report another Complaint. I met with her and explained that although I believed I had completed my investigation as to her original allegations, I would look into the matter before our last scheduled session. This latter Complaint alleged that she had just been told her work assignment was being changed, which she believed was an effort to channel her into a 'dead end' position and was discriminatory,
 
The final session was held privately as scheduled on December 8, 1972, at which time I disclosed my findings of the investigation to the plaintiff. I explained that I could not find justification to her allegations that she had been discriminated against by reason of sex, either on a 'continuing' basis or at a single incident. I provided the plaintiff with a Complaint form and she returned it to me completed, with an Attachment, on December 18, 1972,
 
Since the Attachment appeared to deviate by way of certain additions to her original allegations and Complaints on the basis of which I conducted my investigation, I saw the plaintiff again and discussed the matter of timeliness. I asked her if there were any revisions she wished to make and she stated that no later incidents of alleged discrimination occurred than those reported when she first met with me and she understood that the Attachment was a change from her original statements and allegations concerning discrimination."

 At an unspecified date after December 18, 1972, but within fifteen days after the incident reported on December 6, 1972, the counselor saw the complainant again, explained his interpretation of the December 18, 1972 complaint, a changing of the complaint from the previously alleged personal discrimination to allegations of discrimination against females generally. He asked her if she "had any revisions she wished to make to the complaint since she was still under her 15 days to file". (Administrative record, page 6 of Memorandum of Equal Opportunity Counselor D. Adelman to the Equal Employment Opportunity Officer under date of January 17, 1973.)

 "Complainant understood what was discussed about changing the tone of her complaint from that discussed with the counselor on her Attachment and further stated that no later incidents of alleged discrimination occurred than those reported when she first saw the counselor. No revisions to the Complaint, nor any additions have been subsequently made."

 The conclusions expressed in that memorandum are accurate as a perusal of the December 18, 1972 complaint clearly indicates. In space 5 entitled: "Date On Which Most Recent Alleged Discrimination Took Place", and with spaces to indicate month, day, year, claimant merely wrote: "Attachment". When the "Attachment" is read, we see "5. Continuing", and in 7, which calls for an explanation of how she believed she was discriminated against, she listed the incidents which had been the basis of her original complaint.

 As a consequence, her December 18, 1972 complaint was rejected as untimely. (Administrative record, letter to plaintiff sent by certified mail from the Acting Assistant ...


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