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ALLEN v. CROSBY

July 14, 1976

MARY ANN ALLEN, Administratrix of the Estate of MARY ALLEN, Deceased, GRACIE DAVIS and C. BERNARD ROBINSON, individually and on behalf of others similarly situated, Plaintiffs
v.
REAR ADMIRAL PHILIP CROSBY et al., Defendants



The opinion of the court was delivered by: BRODERICK

BRODERICK, District Judge.

 Presently before the Court is the defendants' motion to dismiss or for summary judgment. Plaintiffs' complaint is brought under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., *fn1" the Civil Rights Act of 1870, 42 U.S.C. § 1981, and the Fifth and Thirteenth Amendments to the United States Constitution. The suit is brought to redress the effect of alleged racial discrimination at the Aviation Supply Office (ASO), a United States Navy agency located at 700 Robbins Avenue, Philadelphia, Pennsylvania. For the reasons stated herein, we have determined that we must dismiss the plaintiffs' complaint.

 Plaintiffs' complaint alleges that the standards and procedures used by the ASO to determine the employment opportunities of civilian employees adversely affect black civilian employees and have not been shown by the ASO to be productive of, or significantly correlated to, important elements of work behavior which comprise the work performed by the ASO employees. In particular, the plaintiffs contend that the ASO has relied upon the subjective opinions of supervisors to an excessive extent in its promotion policies and that this practice has prevented black employees from reaching the higher graded and supervisory positions. In an Order dated April 27, 1973, Judge Masterson certified this case as a class action on behalf of all black civilians who are now employed, who have been employed, who would have been employed but for racial discrimination and who will be employed by the various Navy agencies located at 700 Robbins Avenue, Philadelphia, Pennsylvania. Although the plaintiffs have sued various defendants who are officers in the United States Navy, they now seek to proceed only against Rear Admiral Philip Crosby, the Commanding Officer of the ASO. Accordingly, the plaintiffs seek to limit their representation to the class of all black civilians who are now employed, who have been employed, who would have been employed but for racial discrimination and who will be employed by the ASO.

 The defendants have alleged several bases upon which their motion to dismiss or for summary judgment should be granted. Defendants first contend that the plaintiffs are not entitled to a trial de novo on their Title VII claim but that the Court is confined to a review of the administrative record of a Federal employee's Title VII complaint and can only review that record to ascertain whether the administrative decision is supported by a preponderance of the evidence. However, in Chandler v. Roudebush, 425 U.S. 840, 96 S. Ct. 1949, 48 L. Ed. 2d 416, 44 U.S.L.W. 4709 (1976), the United States Supreme Court held that a Federal employee aggrieved by the final agency disposition of his discrimination claim is entitled to a trial de novo before a United States District Court on his Title VII claim. *fn2" Therefore, if the plaintiffs have exhausted their administrative remedies, they are entitled to a trial de novo in this Court. Ettinger v. Johnson, 518 F.2d 648 (3d Cir. 1975).

 Defendants also contend that the plaintiffs in this case are not entitled to sue under § 717(c) of the Equal Employment Opportunity Act, 42 U.S.C. § 2000e-16(c), because the discrimination complained of by the plaintiffs took place prior to March 24, 1972, the effective date of the Act's 1972 amendments. This issue was settled by our Third Circuit in Sperling v. United States, 515 F.2d 465 (1975). In that case, the Court held that § 717 confers a right to Federal employees to institute a civil suit in all actions where an administrative claim was pending on March 24, 1972. It is clear from the record in this case that plaintiff C. Bernard Robinson had an administrative action pending on March 24, 1972. The status of the complaints of both Mary Allen and Gracie Davis as of March 24, 1972 is unclear from this record. However, because of the disposition we make of the other issues raised in this case in connection with the claims of these two plaintiffs, we need not decide whether the 1972 amendments apply to give them a cause of action.

 Defendants contend that none of the named plaintiffs have met the prerequisites for filing a civil action in a Title VII Federal employee discrimination case. Defendants argue that since none of the named plaintiffs have complied with the procedural prerequisites, the class action must be dismissed. Wetzel v. Liberty Mutual Insurance Company, 508 F.2d 239, 246 (3d Cir. 1975). The operation of Title VII as to claims of Federal employment discrimination is described as follows by the United States Supreme Court in Brown v. GSA, 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402, 44 U.S.L.W. 4704, 4706 (1976):

 
Section 717 of the Civil Rights Act of 1964, as added by § 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16, proscribes federal employment discrimination and establishes an administrative and judicial enforcement system. Section 717(a) provides that all personnel actions affecting federal employees and applicants for federal employment "shall be made free from any discrimination based on race, color, religion, sex, or national origin."
 
* * *
 
Section 717(c) permits an aggrieved employee to file a civil action in a federal district court to review his claim of employment discrimination. Attached to that right, however, are certain preconditions. Initially, the complainant must seek relief in the agency that has allegedly discriminated against him. He then may seek further administrative review with the Civil Service Commission or, alternatively, he may, within 30 days of receipt of notice of the agency's final decision, file suit in federal district court without appealing to the Civil Service Commission. If he does appeal to the Commission, he may file suit within 30 days of the Commission's final decision. In any event, the complainant may file a civil action if, after 180 days from the filing of the charge or the appeal, the agency or Civil Service Commission has not taken final action. (footnote omitted). *fn3"

 Our Third Circuit has likewise held that Federal employees must exhaust their administrative remedies before they are entitled to file a civil suit in the United States District Court. Ettinger v. Johnson, 518 F.2d 648 (3rd Cir. 1975). Thus, the statutory preconditions to the filing of a civil action in the United States District Court by a Federal employee are that the claimant first seek relief in the agency that has allegedly discriminated against him and that he file suit in the Federal district court within thirty days of receipt of notice of the agency's final decision, or within thirty days of the final decision of the Civil Service Commission.

 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). *fn4" Under these regulations, a claimant was first required to seek informal resolution of his complaint through consultation with an Equal Employment Opportunity (EEO) counselor. *fn5" 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. *fn6" 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. *fn7" After a review of the investigative file, the head of the activity attempted to informally arrive at a satisfactory settlement of the complaint. *fn8" 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. *fn9" If the complainant requested a hearing, the Civil Service Commission was required to appoint an appeals examiner to conduct the hearing. *fn10" 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. *fn11"

 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 ...


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