APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 73-702).
Seitz, Chief Judge, Van Dusen and Weis, Circuit Judges.
VAN DUSEN, Circuit Judge.
This appeal is from an order of the district court granting summary judgment against the plaintiff in an action brought against the Veterans Administration (VA) under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq. as amended by Section 717 of the Equal Employment Opportunity Act of 1972, (the 1972 Act) 42 U.S.C. § 2000e-16.*fn1 The summary judgment was predicated upon findings by the trial judge that the plaintiff had failed to timely exhaust administrative remedies and that she did not meet the provisions of 5 C.F.R. § 713.214 (a)(4),*fn2 which permits waiver of the general requirement that a complaint be made within thirty days*fn3 of an alleged discriminatory incident if certain conditions are met. Because the district court did not properly apply F.R. Civ. P. 56 in granting the motion for summary judgment,*fn4 we reverse and remand.
A. The Background of the Case.
This is the second time that this case has been before this Court.*fn5 In Ettinger v. Johnson, 518 F.2d 648 (3d Cir. 1975) (Ettinger I), this Court reversed the district court's determination that the plaintiff was not entitled to a trial de novo on the question of discrimination.*fn6 In its holding in Ettinger I, the district court judge granted summary judgment for the defendant on the ground that the VA's dismissal of the plaintiff's complaint for untimeliness was supported "by not only substantial, but also uncontroverted facts" in the administrative record. We disagreed with the denial of a de novo hearing, and "because the record [then] before us . . . [did] not contain sufficient facts relevant to deciding either aspect of the exhaustion issue, we [remanded] the case to the district court for a hearing de novo on the question of exhaustion." 518 F.2d at 652. It is evident from the language at pages 652-653 of 518 F.2d that the record, as it then existed, was insufficient to ascertain whether or not the December 6, 1972, allegation was an effective claim at the time the formal complaint was filed on December 18, 1972, and whether or not the plaintiff had been apprised of the timeliness provisions of 5 C.F.R. § 713.214(a)(1)(i) so that the waiver provisions of 5 C.F.R. § 713.214(a)(4) would be inapplicable.*fn7
In accordance with our remand, depositions were taken from Ettinger and the Equal Employment Opportunity Counselor (EEO Counselor), who had investigated her allegations when originally made and who subsequently forwarded a report of his findings to the VA after she had filed her formal complaint on December 18th. The augmented record also contained a 1975 affidavit of the EEO Counselor, which is essentially a shorter paraphrase of his 1973 report and contains internal contradictions concerning the vitality of the December 6th claim similar to those discussed in note 7, above.*fn7a Also included was the affidavit of the Chief of Personnel Division of the Veterans Administration Center which indicated that during her tenure plaintiff would have been exposed to information concerning the procedures to be followed in processing Title VII complaints; however, this affidavit specifically indicates that the bulletins distributed to the employees made reference to timeliness requirements only in the sense that "more detailed procedures for processing discrimination complaints were contained" in a VA manual, which, in turn, "contained the time limits within which a complaint must be brought to the attention of an EEO Counselor."*fn8
Ettinger in her deposition and in an affidavit explicitly denied ever receiving any information concerning the thirty-day filing requirement of 5 C.F.R. § 713.214(a)(1)(i) prior to the time of her initial complaint to the EEO Counselor on or about November 17, 1972, or at any time before December 21, 1972.
Finally, it is Ettinger's contention that she brought to the attention of the Counselor at least one other incident of discrimination which occurred within thirty days of her first visit to him but which was not reflected in his January 17th report. She stated in her deposition that one of the ways in which she was discriminated against was that, pursuant to the Merit Promotion Plan, she had been assigned to a "highly qualified status" promotion list as of April 30, 1972, and that she had not been promoted from the list during its six-month effectiveness period. Thus, Ettinger reasons that because she was not promoted during the six-month period and was decertified or removed from "highly qualified status" as of October 30, 1972, the date of the list's termination, she was discriminated against within thirty days of her initial November 17, 1972, complaint to the EEO Counselor. However, the record indicates that the last "personnel actions" from this list occurred April 30, 1972. See paragraph 3, VA letter dated January 23, 1973.
B. The District Court's Opinion.
Following the depositions of Ettinger and the EEO Counselor, both parties moved for summary judgment on the basis of the augmented record as discussed above. On the basis of this record, the district court judge once again granted summary judgment against the plaintiff holding, first, that she had not timely exhausted her administrative remedies and, second, that she was not entitled to a waiver of the timeliness requirements under 5 C.F.R. § 713.214 (a)(4).
Ettinger's contentions, discussed above, concerning her lack of promotion from the "highly qualified status" promotion list, were not discussed in the district court's opinion. The record indicates that this contention was before the district court. See e.g., Plaintiff's Supplemental Motion for ...