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COCCIARDI v. RUSSO

September 28, 1989

MICHAEL J. COCCIARDI
v.
LT. GENERAL VINCENT M. RUSSO



The opinion of the court was delivered by: BRODERICK

 RAYMOND J. BRODERICK, UNITED STATES DISTRICT JUDGE

 Plaintiff Michael J. Cocciardi was employed by the Defense Logistics Agency ("DLA") at the Defense Personnel Support Center in Philadelphia. On September 17, 1976, he filed a complaint of discrimination against DLA alleging that his annual performance rating for 1975 had been lowered from outstanding to satisfactory because of his age (55 years old) and national origin (Italian). He filed a second discrimination complaint against the agency on April 22, 1977, alleging that his annual performance rating for 1976 had been lowered from outstanding to satisfactory because of his age, national origin and religion (Catholic). On November 21, 1983, he filed a third discrimination complaint alleging that he had been discriminated against because of his age, national origin and religion, had incurred reprisals for submitting his prior complaints and had been denied many promotional opportunities.

 The agency considered the EEOC examiner's recommended decision, but determined that Mr. Cocciardi's promotion, back pay and benefits should be retroactive only to October 21, 1983 and not January 1, 1977; stating:

 
I find that you were discriminated against when your performance was rated in 1976 and 1977 which did subsequently impact upon your opportunity for promotion. However, as you did not specifically complain about nonselection until 21 November 1983, I find that you are entitled to retroactive promotion 30 days prior to this complaint, not 1 January 1977, the date recommended by the EEOC complaints examiner.

 Mr. Cocciardi filed a timely notice of appeal of the agency's decision to the EEOC's Office of Review and Appeals on September 3, 1985.

 On June 5, 1987, the EEOC Office of Review and Appeals determined that the EEOC examiner had erred insofar as he had recommended back pay, benefits and promotion retroactive to January 1, 1977 and held that the back pay, benefits and promotion should have been awarded retroactive only to November 21, 1981, which was two years prior to the date of Mr. Cocciardi's third complaint. The EEOC in issuing its decision stated:

 
The Commission's regulations limit an award of back pay to two years prior to the date the discrimination complaint was filed. 29 C.F.R. § 1613.271(b)(1). While the record demonstrates that appellant applied for promotions and complained about not being selected as far back as 1976, he did not file a formal complaint of discrimination on his nonselections until November 21, 1983.

 Mr. Cocciardi filed a timely petition for reconsideration of the EEOC decision, which the EEOC denied on August 17, 1988. Having exhausted his administrative remedies, Mr. Cocciardi timely filed a complaint with this court on September 16, 1988, requesting this court to award him backpay, benefits and promotion retroactive to January 1, 1977.

 This case having been called for a nonjury trial on July 12, 1989, this court inquired of the parties concerning the issues to be tried. The court noted that in Chandler v. Roudebush, 425 U.S. 840, 96 S. Ct. 1949, 48 L. Ed. 2d 416 (1976), the Supreme Court determined that federal employees have been afforded the right to trial de novo of their employment discrimination claims. The government, however, has no right to appeal final administrative decisions or to demand a trial de novo. In response to the court's inquiry, Mr. Cocciardi replied that the only issue to be determined at the trial is "whether Plaintiff 'complained' to the appropriate authorities . . . prior to 21 November 1983, of having lost promotional opportunities as a result of the Agency's discrimination." The government, on the other hand, responded that the trial de novo should be limited to the issue of whether the performance appraisals for the years 1975 and 1976 were the cause of Mr. Cocciardi's failure to be selected for a specific position for which he timely complained and whether, absent discrimination, plaintiff would have been promoted to that position prior to November 21, 1981. It appears, therefore, that Mr. Cocciardi and the government, though they have slightly different views as to the issue to be determined by the court at the trial of this action, both take the position that Chandler does not require a trial de novo.

 
In Chandler, the Supreme Court stated It is well established that § 706 of the Civil Rights Act of 1964 accords private-sector employees the right to de novo consideration of their Title VII claims. . . . Since federal-sector employees are entitled by § 717(c) to 'file a civil action as provided in section 706' . . . and since the action provided in § 706 is a trial de novo, it would seem to follow syllogistically that federal employees are entitled to a trial de novo of their employment discrimination claims.

 425 U.S. at 845-846, 96 S. Ct. at 1952. The Supreme Court specifically determined that the Congressional intent embodied in the 1972 Amendments to Title VII was violated by the District and Circuit Courts' failure to require a "trial de novo " in Hackley v. Johnson, 360 F. Supp. 1247, 1252 (D.C. D.C. 1973). The Supreme Court, in commenting on the standard of review in Hackley, stated "Nothing in the legislative history indicates that the federal-sector 'civil action' was to have this chameleon-like character, providing fragmentary de novo consideration of discrimination claims. . . ." 425 U.S. at 861, 96 S. Ct. at 1959. Since this decision of the Supreme Court in 1976, federal employees filing complaints taking issue with administrative decisions in connection with claims of discrimination receive a "trial de novo " of their employment discrimination claims. It is well-recognized that a "trial de novo " requires a trial of all the issues in the particular case. It has always been distinguished from an "appeal" wherein an appellate court reviews the record and makes a determination concerning specific errors. Black's Law Dictionary (5th Ed. West 1979) p. 1349 defines the standard thus: " trial de novo. A new trial or retrial had in which the whole case is retried as if no trial whatever had been had in the first instance."

 Mr. Cocciardi relies on Pecker v. Heckler, 801 F.2d 709 (4th Cir. 1986) for his contention that he is entitled to a "'fragmented' trial de novo " because "to the extent that the agency's or the EEOC's findings on liability are favorable to the federal employee, they must be enforced and adopted by the district court upon request," but "to the extent that the agency's or the EEOC's findings on the remedy are adverse to the federal employee, or do not give him all the relief he wants, a trial de novo on those damages issues should be conducted upon the employee's request." ...


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