The opinion of the court was delivered by: LUONGO
Plaintiff was formerly employed by the Department of the Navy as a machinist in the Philadelphia Naval Shipyard. He was hired in that capacity on three separate occasions; each time, he was terminated within six months of his appointment. Following each termination, plaintiff pursued (to varying degrees) his administrative remedies within the federal government. On November 28, 1978, he filed this complaint pro se, alleging that each of the three terminations was racially motivated and hence violative of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a) (1976). The Navy moves to dismiss the complaint for lack of subject-matter jurisdiction, and has attached to its motion copies of three letters addressed to plaintiff and a copy of an administrative decision on one of his complaints. The Navy's motion raises a number of factual issues relating to jurisdiction that must be clarified before I can dismiss any of plaintiff's claims. See Fed.R.Civ.P. 12(b)(1), (d).
In 1972, "Congress extended the protection of Title VII of the Civil Rights Act of 1964 . . . to employees of the Federal Government." Chandler v. Roudebush, 425 U.S. 840, 841, 96 S. Ct. 1949, 1950, 48 L. Ed. 2d 416 (1976) (citation omitted); See Equal Employment Opportunity Act of 1972, Pub.L.No.95-261, § 11, 86 Stat. 103. The 1972 legislation added a new provision section 717 that "proscribes federal employment discrimination and establishes an administrative and judicial enforcement system." Brown v. General Servs. Administration, 425 U.S. 820, 829, 96 S. Ct. 1961, 1966, 48 L. Ed. 2d 402 (1976) (footnote omitted). Subsection (c) of that section is of particular importance here.
The Supreme Court has described its operation as follows:
"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."
Brown v. General Servs. Administration, 425 U.S. 820, 832, 96 S. Ct. 1961, 1967, 48 L. Ed. 2d 402 (1976).
The Navy argues that subject-matter jurisdiction is lacking here because (1) plaintiff failed to bring this action within the thirty-day limitation of section 717(c), and (2) in any event, plaintiff failed to exhaust his administrative remedies before bringing this suit. I shall consider these issues in turn.
Initially, the Navy contends that the thirty-day limitation of section 717(c) bars plaintiff's claims based on his first termination and his third termination.
Plaintiff alleges that he received his first temporary appointment as a machinist on or about November 15, 1972. Complaint P 7. On April 4, 1973, he received formal notice that his appointment would be terminated in two days for unsatisfactory conduct. Decision of Board of Appeals and Review, Exhibit A to Defendant's Memorandum (Document No. 7). He filed a formal complaint of discrimination that same day. The Shipyard conducted an investigation, and it advised plaintiff in July "of its proposed finding that the evidence of record did not support the allegation of discrimination." Id. By letter dated July 26, 1973, the Shipyard informed him that its proposed finding "would be adopted as the final agency decision on his complaint." Id. Plaintiff then appealed to the Civil Service Commission's Board of Appeals and Review. On October 2, 1973, the Board issued a final decision affirming the agency's decision.
Although section 717(c) requires that civil actions such as this be filed within thirty days of "receipt of notice of final action taken by a department, agency, or unit . . . or by the Civil Service Commission," 42 U.S.C. § 2000e-16(c) (1976), plaintiff did not file this complaint until November 28, 1978, more than five years after the Board had issued its final decision. The Navy therefore urges that subject-matter jurisdiction is lacking here insofar as the complaint seeks review of plaintiff's first termination. See also Hart v. J. T. Baker Chem. Co., 598 F.2d 829 (3d Cir. 1979).
Plaintiff alleges, however, that he "filed this Complaint within thirty days of having been advised of his right to do so." Complaint P 14. Although the statutory thirty-day period runs from "receipt of notice of final action," 42 U.S.C. § 2000e-16(c) (1976), rather than from receipt of notice of one's right to sue, plaintiff's allegation at least suggests that he may not have received notice of the Board's 1973 decision at the time it was issued. Indeed, if plaintiff Did receive a copy of that decision when it was issued, then his allegation in paragraph 14 would make no sense, for the decision itself plainly stated that plaintiff could bring a civil action in district court within thirty days. Exhibit A to Defendant's Memorandum (Document No. 7). Thus, I construe paragraph 14 of the complaint as alleging that this action was commenced within thirty days of plaintiff's receipt of notice of final action on his complaint of discrimination in connection with the first termination. The Navy has not traversed this allegation by affidavit or otherwise. When and if the Navy properly puts it in issue, plaintiff will of course be required to establish that he filed this action within thirty days of receipt of notice of final action, for jurisdiction hinges on that fact.
Much the same may be said of the Navy's motion with respect to plaintiff's third termination. Plaintiff alleges that he was reinstated on March 14, 1977 and terminated (for the third time) on July 1, 1977. Complaint P 11. He filed a formal complaint of discrimination with the Shipyard on July 6, 1977. The Commander of the Shipyard later advised plaintiff, by letter dated April 4, 1978, that this complaint would be cancelled because plaintiff had failed to prosecute it. Exhibit B to Defendant's Memorandum (Document No. 7). This cancellation was a final decision by the Shipyard.
Plaintiff did not file this complaint until November 28, 1978, some seven months after this final decision was issued. The Navy again invokes the thirty-day limitation of section 717(c) and it argues that subject-matter jurisdiction is lacking here insofar as plaintiff seeks review of his third termination. In my view, however, paragraph 14 of the pro se complaint alleges that plaintiff commenced this suit within thirty days of his receipt of notice of the Shipyard's final action on his complaint of discrimination in connection with his third termination. The Navy has ...