decided as amended march 2 1984.: February 27, 1984.
On Appeal from the United States District Court for the Eastern District of Pennsylvania.
Adams, Becker, and Van Dusen, Circuit Judges.
This is an employment discrimination case arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The gravamen of the complaint is that appellant Carol A. Waiters was discharged from her position as a social worker at the Veterans Administration Medical Center, Coatesville, Pennsylvania ("VAMC"), allegedly in retaliation for having filed an informal EEOC complaint in 1978 and a formal EEOC complaint in 1979 against her superiors at VAMC, and for having testified in an EEOC proceeding brought by a fellow employee in 1981. This appeal is from a judgment of the district court dismissing the action on the grounds that appellant had failed to exhaust administrative remedies with respect to her discharge claim.
Under Title VII, a victim of discrimination may file a complaint in federal district court either (1) within thirty days of final action by the EEOC or the employing agency, or (2) after 180 days pass from the filing of the administrative complaint, if there is no final agency action. Where there is no final agency action, there is no limit on the time in which a suit may be filed in district court. 42 U.S.C. § 2000e-16(c). While appellant did not pursue administrative remedies with respect to her discharge, a review of the record makes clear that her claim that she was discharged in retaliation for filing EEO charges falls within the scope of the EEOC investigation which arose out of her 1979 formal complaint, which also charged retaliation against appellant for asserting her rights under Title VII but on which there was no final agency action. A victim of discrimination is not required to exhaust administrative remedies with respect to a claim concerning an incident which falls within the scope of a prior EEOC complaint or the investigation which arose out of it, provided that the victim can still bring suit on the earlier complaint. Since we conclude that appellant's current claim falls within the scope of the prior investigation, and that appellant would be entitled to sue on the complaint that led to that investigation, appellant was free to bring this suit without further exhausting her administrative remedies. We therefore reverse the judgment of the district court and remand for further proceedings.
Appellant was hired as a clinical social worker at VAMC in 1971.*fn1 She had been a federal employee since 1964. In March 1978, appellant filed an informal EEOC complaint against Joseph A. Armstrong, Chief of the Social Work Service at VAMC, alleging that the promotion of a male employee to a GS-11 position in a newly established intensive treatment ward discriminated against her on the basis of her sex. She withdrew the complaint after mediation, which resulted in her being given a position in the new program. Appellant felt, however, that she was a victim of continuing discrimination, primarily because VAMC was inhospitable to her ideas concerning education of medical students. Thus, on August 10, 1979, appellant filed a formal complaint with the EEOC alleging continuing discrimination in retaliation for her filing of the 1978 informal complaint.
After an investigation, the district director of the EEOC found that there was support for appellant's allegations,*fn2 and recommended that the VAMC official responsible be "admonished in writing," that all supervisory personnel at VAMC be given "re-training and re-emphasis of EEO law, principles, procedures, and policy," and that VAMC "cease and desist from committing any discriminatory act's [sic] against [appellant] for having filed a [sic] EEO complaint. . . ." However, no further action was taken by the EEOC, appellant's complaint was never finally adjudicated by the agency, and no right to sue letter ever issued.
Subsequently, appellant became involved in an attempt to implement a program for Vietnam veterans at VAMC. Although the program proposal was never adopted, appellant became closely involved with many of the veterans and organizations working on their behalf. One of the veterans charged that appellant had made sexual advances toward him. These charges led to an investigation of appellant's conduct. On November 12, 1981, as a result of the investigation, appellant was notified of her proposed removal, based on numerous allegations of misconduct. Appellant, through her attorney, replied to the allegations in writing on December 11, 1981, and apparently appeared before appellee Parsons, VAMC's Medical Director, on December 14.*fn3 On December 23, 1981, Parsons wrote appellant notifying her of her discharge.*fn4
Appellant did not thereupon pursue any administrative remedies before the EEOC or the Veterans Administration. Rather, on January 8, 1982, appellant filed a complaint in the District Court for the Eastern District of Pennsylvania under Title VII of the 1964 Civil Rights Act and under 42 U.S.C. §§ 1981, 1983. The complaint alleged that her discharge was motivated by defendant's desire to retaliate against appellant for exercising her rights under Title VII. The complaint requested a temporary restraining order, which the district court denied. An amended complaint, based on the same allegations and requesting a preliminary injunction, reinstatement, and damages, was filed on January 14. After a hearing, the preliminary injunction was denied.*fn5
Subsequently, appellant appealed her dismissal to the Merit Systems Protection Board ("MSPB"). The MSPB ordered the sanction reduced to a sixty-day suspension.*fn6 On February 28, 1983, the district court dismissed appellant's complaint on the grounds that she had failed to exhaust her administrative remedies.*fn7 This appeal followed.
The district court dismissed the present action on the grounds that there was no federal court jurisdiction because the plaintiff had not filed a complaint with the EEOC prior to bringing this action. After the district court ruled, the Supreme Court held that the timely filing of a complaint with the EEOC is not a jurisdictional prerequisite to bringing suit in federal court under Title VII. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392-98, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). Standing alone, Zipes would require that we vacate the district court's decision and remand the case for reconsideration of whether the doctrines of waiver, estoppel, or tolling should be applied. We decline to base our decision solely on Zipes, however, because we find that there are alternative grounds fairly raised ...