that either Mary Allen or Gracie Davis have satisfied the preconditions to filing a civil action under Section 717 of Title VII. Ettinger v. Johnson, supra. Indeed, the record shows that Mary Allen was informed by a letter dated May 13, 1971 of the final decision of the Department of the Navy that her allegations of racial discrimination were not supported by the record. She did not, however, file suit until almost eighteen months later on September 11, 1972, well in excess of the thirty days mandated by Section 717(c). As to plaintiff Gracie Davis, the record shows that she has not, at this time, sought relief with the Department of the Navy, as required by § 717(c), 42 U.S.C. § 2000e-16(c). Brown v. GSA, supra.
The facts relating to the complaint of C. Bernard Robinson are more complex. At the time that Mr. Robinson filed his administrative complaint with the Department of the Navy, the procedures for processing an Equal Employment Opportunity Complaint were set forth in a Navy document entitled Joint Instruction 12713.1E (JOINTINST 12713.1E).
Under these regulations, a claimant was first required to seek informal resolution of his complaint through consultation with an Equal Employment Opportunity (EEO) counselor.
The EEO counselor was required to make all inquiries which he believed necessary and to submit a written report to the head of the activity if an informal resolution was not reached.
After a formal written complaint was filed with the head of the activity, an investigatory officer was assigned to obtain and develop the full information in connection with each of the complaint's allegations in sufficient detail to permit an evaluation of all the relevant issues.
After a review of the investigative file, the head of the activity attempted to informally arrive at a satisfactory settlement of the complaint.
If an adjustment was not reached, the head of the agency notified the complainant in writing of his proposed disposition of the matter. This notice advised the complainant that if he was dissatisfied with the proposed disposition, he had the right to request a hearing and a decision by the Director of Equal Employment Opportunity (DEEO), or a decision in connection with his complaint by the DEEO without a hearing.
If the complainant requested a hearing, the Civil Service Commission was required to appoint an appeals examiner to conduct the hearing.
Upon completion of the hearing, the appeals examiner was required to submit the complaint file, including the transcript of the hearing, to the DEEO, who made the final decision in connection with the discrimination complaint on behalf of the Department of the Navy.
In September, 1969, Mr. Robinson volunteered to become an EEO counselor and served in that capacity until April, 1971. In February, 1971, Mr. Robinson applied for a new position at the ASO but was not appointed to the job. On April 12, 1971, Mr. Robinson made a complaint of racial discrimination with the EEO counselor. Informal conciliation failed and on June 8, 1971, Mr. Robinson requested a formal investigation of his charges of racial discrimination. On November 11, 1971, the investigator filed an initial report, which was followed on January 19, 1972 by a second report, in which the investigator found that there was insufficient evidence to conclusively prove or disprove Mr. Robinson's charge of racial discrimination. On March 6, 1972, Mr. Robinson received the proposed denial of his complaint from the head of the agency. On March 13, 1972, after meeting with the head of the agency, Mr. Robinson requested a hearing before a Civil Service Commission Appeals Examiner. After the appointment of the Appeals Examiner on March 17, 1972, counsel for Mr. Robinson, at the request of the Appeals Examiner, submitted a list of his proposed witnesses. Counsel for Mr. Robinson requested copies of various documents he wished to introduce into evidence at the administrative hearing. The Appeals Examiner limited the number of witnesses which Mr. Robinson would be permitted to call and denied his request for some documents.
On May 12, 1972, the hearing was convened. The Appeals Examiner again denied the request of Mr. Robinson's counsel to present additional witnesses and introduce additional documents. Mr. Robinson and his counsel then decided that they would not proceed with the hearing pursuant to rulings made by the Appeals Examiner and walked out of the hearing without any evidence having been presented. On May 24, 1972, the Appeals Examiner transmitted the abbreviated record of the hearing to the Navy, together with his analysis thereof. Thereafter, in a letter dated August 8, 1972 which was delivered to the plaintiff on August 14, 1972, the plaintiff was advised that the Secretary of the Navy had canceled the complaint of Mr. Robinson for his failure to prosecute.
We hold that, under the unique circumstances of this case, Mr. Robinson has failed to exhaust his administrative remedies prior to the filing of his civil action as required by § 717(c) of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16(c). See Brown v. GSA, supra, and Ettinger v. Johnson, supra. The actions of Mr. Robinson and his counsel in deliberately "walking out" of the administrative hearing was a deliberate abandonment of the administrative process. If the Court were to ignore the conduct of Mr. Robinson and his counsel who, when confronted with an adverse ruling by the Appeals Examiner, deliberately left the hearing, the exhaustion of remedies requirement would be rendered meaningless and the balance struck by Congress between administrative and judicial functions in Federal employee employment discrimination cases would be negated. Plaintiffs argue, however, that under the applicable regulations outlined above, Mr. Robinson was not required to request an administrative hearing in order to exhaust his administrative remedies and obtain a final agency decision. While Mr. Robinson could have requested a final decision by the DEEO without a hearing, Mr. Robinson chose to request such a hearing and make the results of his administrative hearing part of the record on which the final agency decision would be based. It is clear from the record in this case that a final agency decision has not been rendered on the merits of Mr. Robinson's claim.
As stated in Brown v. GSA, 425 U.S. at 832, 44 U.S.L.W. at 4707, Congress was careful to draft a statute which "provides for a careful blend of administrative and judicial enforcement powers." The Supreme Court in Brown pointed out that § 717 of the Act contains "rigorous administrative exhaustion requirements." 425 U.S. at 833, 44 U.S.L.W. at 4707. The "crucial administrative role" that the agency is to play would be defeated if the Court would condone the actions of Mr. Robinson in this case. Brown, supra, 425 U.S. at 833, 44 U.S.L.W. at 4707. Because Mr. Robinson has failed to exhaust his administrative remedies and obtain a final agency agency decision, we must dismiss him as a named plaintiff in connection with the Title VII action. It follows therefore that none of the three named plaintiffs have complied with the statutory prerequisites required of a Federal employee for filing a civil action in connection with Title VII.
Plaintiffs argue that even if their claims under Title VII are dismissed, they still have valid claims under 42 U.S.C. § 1981, as well as the Fifth and Thirteenth Amendments to the United States Constitution, and can obtain relief thereunder for their employment discrimination claims.
In the recent Supreme Court case of Brown v. GSA, supra, the Court stated that the "unambiguous congressional perception seems to indicate that the congressional intent in 1972 was to create exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination" and held "that § 717 of the Civil Rights Act of 1964, as amended, provides the exclusive judicial remedy for claims of discrimination in federal employment." 425 U.S. at 835, 44 U.S.L.W. at 4706, 4708. See also Gissen v. Tackman, 537 F.2d 784 (3d Cir. 1976). Therefore, the plaintiffs' claims under 42 U.S.C. § 1981, as well as the Fifth and Thirteenth Amendments, will be dismissed.
Accordingly, the following Order is entered:
AND NOW, this 14 day of July, 1976, upon consideration of the defendants' motion to dismiss or for summary judgment, it is hereby ORDERED that the motion is GRANTED and the above captioned action is DISMISSED.
RAYMOND J. BRODERICK, J.