second appeal. See Cohen v. General Services Admin., 53 M.S.P.R. 492 (1992). The MSPB once again affirmed Judge Squire's decision upholding GSA's actions. The MSPB again declined to reconsider its decision regarding the discrimination and reprisal issues, however.
Thereafter, on May 11, 1992, plaintiff appealed to the Equal Employment Opportunity Commission ("E.E.O.C.") pursuant to 5 U.S.C. § 7702(b)(1). After reviewing plaintiff's evidence of alleged discrimination and reprisal, the E.E.O.C. concluded that plaintiff failed to prove by a preponderance of the evidence that GSA's actions were the result of religious or reprisal discrimination.
The E.E.O.C. then noted that its decision was final, and that plaintiff had thirty days from the date of receipt of its decision in which to file a civil action in the appropriate U.S. District Court.
Plaintiff filed suit in this Court on September 25, 1992.
At issue in this case is whether this Court has jurisdiction to hear plaintiff's claims, or alternatively, whether jurisdiction lies with the Federal Circuit Court of Appeals. Section 7703(b)(1) of Title 5 of the United States Code provides in pertinent part: "Except as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit." 5 U.S.C. § 7703(b)(1) (1980 & Supp. 1993). Paragraph 2 governs allegations of discrimination raised pursuant to "section 717 of the Civil Rights Act of 1964." 5 U.S.C. § 7703(b)(2)(1980). Pursuant to section 7703(c), if a claim of discrimination is raised, then de novo review is proper in a federal district court. 5 U.S.C. § 7703(c)(3) (1980 & Supp. 1993); Kean v. Stone, 926 F.2d 276, 281-83 (3rd Cir. 1991); Gollis v. Garrett, 819 F. Supp. 446, 448-49 (E.D. Pa. 1993). Alternatively, if there is no allegation that the employer's action was the result of unlawful discrimination, then review is proper in the Federal Circuit. Gollis, 819 F. Supp. at 448.
Additionally, when a "mixed case" is appealed (cases "which raise a procedural violation of civil service matter in conjunction with an allegation of discrimination"), James v. Levinson, 680 F. Supp. 187, 190 (E.D. Pa. 1988), it is within the jurisdiction of the district court, and not the Federal Circuit. Kean, 926 F.2d at 284; Gollis v. Garrett, 819 F. Supp. at 449. Further, an employee has the right to seek review of the MSPB's decision with the E.E.O.C., prior to filing suit in the district court. 5 U.S.C. § 7702(b)(1)-(5) (1980); 29 C.F.R. § 1613.421. The E.E.O.C. can review only the discrimination portion of the MSPB's decision. James, 680 F. Supp. at 190. The employee can then "wait to file suit [in district court] until after the E.E.O.C.'s final decision." Gollis, 819 F. Supp. at 449 (citing 5 U.S.C. § 7702(b); 29 C.F.R. 1613.421).
In defendant's motion, he asserts several disjointed theories to support his argument that jurisdiction is not proper before this Court, and that jurisdiction lies in the Federal Circuit. First, defendant states that plaintiff failed to properly plead his discrimination claim on the MSPB's petition for appeal form. Defendant contends that because of plaintiff's failure, the MSPB never considered the merits of plaintiff's discrimination claim. Defendant bolsters this argument by citing the fact that the MSPB held Judge Squire in error for refusing to grant defendant's motion to exclude any evidence of discrimination. In essence, defendant contends that the only decision the MSPB made regarding plaintiff's discrimination claim was a decision not to disturb the administrative judge's findings. Since Judge Squire held that plaintiff failed to establish a prima facie case of discrimination, the review by MSPB was not on the merits of the case. For this reason, defendant asserts that this is not a mixed case, and therefore jurisdiction is proper in the Federal Circuit.
Second, defendant asserts that jurisdiction is not proper because this is a case involving frivolous allegations of discrimination and reprisal. Defendant contends that plaintiff's allegations are frivolous because plaintiff failed to properly plead any facts to support his allegations of discrimination and reprisal, and thus, failed to prove he had a prima facie case. Defendant relies on Hill v. Department of the Air Force, 796 F.2d 1469, 1471 (Fed. Cir. 1986) for the proposition that a frivolous allegation of discrimination does not create a mixed case, and that jurisdiction is therefore proper in the Federal Circuit.
Under the law, if defendant's assertions were correct, it would be plausible that the Federal Circuit has jurisdiction over this matter rather than this Court. However, defendant almost completely ignores the fact that in this case, the E.E.O.C. has already considered the merits of plaintiff's discrimination and reprisal claims and has issued a decision concerning those claims. Defendant's efforts to mold this matter into a "procedural or threshold" matter, one that is completely separate from the merits of a discrimination case and therefore subject to review in the Federal Circuit, (see Ballentine v. Merit Systems Protection Board, 738 F.2d 1244, 1247 (Fed. Cir. 1984)) only serve to annoy this Court by attempting to create a situation out of the facts that in reality does not exist.
It is clear that this Court has jurisdiction in this matter. First, this is not a case where plaintiff is directly appealing a decision rendered by the MSPB. Plaintiff properly filed an appeal of the MSPB's decision with the E.E.O.C. pursuant to 5 U.S.C. § 7702 (1980) and 29 C.F.R. § 1613.421. As noted above, the E.E.O.C. has already considered plaintiff's discrimination and reprisal claims, and has rendered an opinion regarding those claims. Pursuant to section 7702(b) of the United States Code and 29 C.F.R. 1613.421, a party has the right to file a complaint in federal district court after notice that the E.E.O.C. has concurred with MSPB's decision. Gollis v. Garrett, 819 F. Supp. 446, 449 (E.D. Pa. 1993). Thus, plaintiff is now entitled to de novo review of his discrimination and reprisal claims in district court.
Second, defendant's reliance on Hill v. Department of the Air Force, 796 F.2d 1469 (Fed. Cir. 1986) is misplaced. In Hill, the MSPB sustained the Department's decision to remove Hill from his job. Hill sought to transfer the appeal from the Federal Circuit Court of Appeals to district court, alleging that this case constituted a mixed case of discrimination. The Federal Circuit Court of Appeals denied the transfer, holding that there was no mixed case because Hill's claims of age discrimination were frivolous. In defining what the term "frivolous" meant, the court stated that a non-frivolous allegation was equivalent to the potential for a prima facie case if the facts as alleged were proven. Id. at 1472. Thus, "at the allegation or pleading stage the employee need not prove a prima facie case of prohibited discrimination. That burden arises at the hearing." Id. The court reasoned that in this case, the MSPB properly dismissed Hill's discrimination claim as frivolous because he failed to state the basis for his claim despite several requests by the MSPB's presiding official and the MSPB itself to do so. Id. AT 1471. Thus, the court concluded that Hill "alleged no set of facts which, if proven, would comprise even a minimum prima facie case of age discrimination." Id.
We note that Hill is not binding on this Court, as it is a Federal Circuit decision. Even so, the fact patterns in the two cases are dissimilar. Unlike Hill, this case does not involve an appeal by a decision from the MSPB, rather, this case involves an appeal from a decision by the E.E.O.C.. Further, there was no request in this case by either the MSPB's presiding official (Judge Squire) or the MSPB itself for plaintiff to present the basis for his discrimination and reprisal claims. While plaintiff in this case did not fully explain the basis of these claims in the petition for appeal form, he still presented evidence of those claims to Judge Squire, who considered the evidence in determining that plaintiff failed to prove a prima facie case. The MSPB noted in its decision that Judge Squire erred in considering such evidence, but that the error was harmless because of the ultimate decision made by Judge Squire on the discrimination claims. Cohen v. General Services Admin., 48 M.S.P.R. 451, 459 (1991). Nonetheless, the M.S.P.B. gave no indication that this was a case involving a frivolous claim of discrimination or reprisal, rather, it cited to Judge Squire's credibility determinations and fact findings in affirming her decision that plaintiff failed to establish a prima facie case of discrimination and reprisal. Id. at 459 (citing Initial Decision at 96-102). In essence, the MSPB adopted Judge Squire's substantive determinations in deciding that the matter did not warrant full Board review.
That this case is not one involving a frivolous allegation of discrimination or reprisal is further evidenced by caselaw cited in Hill. In Meehan v. United States Postal Service, 718 F.2d 1069 (Fed. Cir. 1983), the Federal Circuit held that it had jurisdiction over Meehan's appeal concerning the removal from his position at the U.S. Postal Service. In this case, Meehan alleged he was improperly removed from his job due to race discrimination. However, in the petition for appeal form, Meehan failed to give reasons for his discrimination claim. The MSPB's presiding official had held that Meehan failed to prove his case because he did not present any evidence to support his claims of discrimination.
The court gave three reasons for holding that it had jurisdiction over Meehan's appeal rather than the district court. First, Meehan failed to properly allege discrimination in the petition for appeal form. Second, Meehan failed to offer any evidence of discrimination at the hearing before the presiding official, thus "it cannot be said that an issue of discrimination was tried by the parties." Id. at 1073. Third, Meehan failed to give any indication that he would seek de novo review of the racial issues in district court. In a footnote, the court stated:
We note that Meehan did not raise the issue of discrimination in his petition to the board for review of the Presiding Official's decision and that the decision by the MSPB contains no discussion of discrimination. However, in view of the limited grounds for obtaining review of a Presiding Official's initial decision by the board [citations omitted], the issue of discrimination may be preserved even though not presented to the board itself where only an evidentiary basis for challenging the finding of no discrimination exists. It is the Government's position that the decision of the Presiding Official should be deemed incorporated by reference into the final decision. This position affords an employee the greatest rights and conforms to the language of 5 U.S.C. § 7703(c) that in a case of discrimination "the employee or applicant shall have the right to have the facts subject to trial de novo by the reviewing court." Thus, we conclude that the failure to raise the discrimination issue in the petition for review does not, ipso facto, constitute a waiver and an alternative basis for holding that this court has jurisdiction.
Meehan, 718 F.2d at 1074 n. 6.
It is clear from Meehan that the instant case is not one that should be deprived of de novo review by this Court. While plaintiff may have failed to give reasons for his discrimination and reprisal claims in the petition for appeal, he submitted evidence of discrimination and reprisal before Judge Squire, and he clearly indicated he was seeking de novo review by this Court. This is not a situation where plaintiff simply alleged discrimination and reprisal without any further attempt to prove those claims in order to gain jurisdiction by this Court. Plaintiff clearly made efforts to prove his case, however, the administrative judge, MSPB and E.E.O.C. all concluded the evidence simply was not strong enough to prove a case of discrimination or reprisal. See also Edwards v. Weinberger, 688 F. Supp. 203, 206 (E.D. Va. 1987) (district court did not have jurisdiction over plaintiff's appeal where petition for appeal form alleged discrimination, but plaintiff presented no evidence of discrimination before administrative law judge or MSPB).
In sum, this is not a case that involves a frivolous allegation of discrimination or reprisal. Both Judge Squire and the E.E.O.C. have considered plaintiff's claims of discrimination and reprisal
in this case. As such, plaintiff is entitled to de novo review under the law. Further, defendant's argument that this Court cannot transfer the case to the Federal Circuit is moot in light this Court's decision. For these reasons, defendant's motion for summary judgment is DENIED.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 833 F. Supp. 512.
AND NOW, this 13th day of September, 1993, upon
consideration of defendant Richard G. Austin's Motion for Summary Judgment and plaintiff Robert C. Cohen's response thereto, it is hereby ORDERED that defendant's motion is DENIED.
BY THE COURT:
J. Curtis Joyner, J.