The opinion of the court was delivered by: McLAREN, District Judge.
MEMORANDUM OPINION AND ORDER
This matter arises upon the filing of the magistrate's
report and recommendation that this cause be dismissed. For
the reasons set forth below, the recommendation will be
adopted in part.
The complaint alleges that plaintiff was discharged from her
job by defendant Department of Health, Education and Welfare
("HEW") because of her race, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the
The government argued for dismissal of the Title VII claim,
Count I, and the magistrate agreed, that plaintiff has no
claim under either the 1964 act or the Equal Employment
Opportunity Act of 1972. Agencies of the United States were
clearly exempted from the operation of Title VII as originally
enacted, 42 U.S.C. § 2000e(b) and (c). Section 2000e-16, Title
42 U.S.C. is also, as the magistrate recommends, of no
assistance to plaintiff. Although that section creates a new
claim for federal employees, § 2000e-16(c), the allegedly
discriminatory discharge in this case is claimed to have
occurred prior to the effective date of the new statute, and
therefore cannot be the basis of a claim. Cf., Nishiyama v.
North American Rockwell Corp., 49 F.R.D. 288, 292 (C.D.Cal.
1970); Banks v. Local 136, IBEW, 296 F. Supp. 1188, 1189
(N.D.Ala. 1968). The limited retroactivity provided by § 14 of
the 1972 Act, Pub.L. 92-261, "[t]he amendments made by this Act
to Section 706 of the Civil Rights Act of 1964 shall be
applicable with respect to charges pending with the Commission
on the date of enactment of this Act . . .", does not give
plaintiff a claim for alleged discrimination prior to the
effective date because of her proceedings before the Civil
Service Commission. The Court need not examine the government's
argument and the magistrate's recommendation that "the
Commission" can only refer to the Equal Employment Opportunity
Commission. There is a much simpler explanation. Section
2000e-16 is not an amendment to § 706 (42 U.S.C. § 2000e-5); it
is a new section. The Court thus agrees with the magistrate's
conclusion that Count I fails to state a claim.
The magistrate's report and recommendation fails to discuss
plaintiff's constitutional claim in Count II. His
recommendation of dismissal is presumably based upon the
government's argument that the count fails to allege any
jurisdictional basis and is therefore barred by the doctrine
of sovereign immunity. If facts giving the Court jurisdiction
have been set forth, the statutory provision conferring
jurisdiction need not be specifically pleaded. Williams v.
United States, 405 F.2d 951, 954 (9th Cir. 1969). Count II
alleges that plaintiff's discharge from employment was based
upon racial discrimination, depriving her of rights guaranteed
under the Constitution (presumably the Fifth Amendment), and
that the matter in controversy exceeds the sum of $10,000,
exclusive of interests and costs. The Court thus has
jurisdiction of Count II under 28 U.S.C. § 1331. Gautreaux v.
Romney, 448 F.2d 731, 735 (7th Cir. 1971).
Accordingly, the motion to dismiss is hereby granted as to
Count I and denied as to Count II.
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