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United States District Court, Northern District of Illinois, E.D

September 22, 1982


The opinion of the court was delivered by: Shadur, District Judge.


Charles Sims ("Sims") alleges he was subjected to employment discrimination by the Department of Health and Human Services ("HHS") in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-16 (1976). HHS has moved for dismissal for Sims's failure to satisfy jurisdictional preconditions to suit. For the reasons stated in this memorandum opinion and order, HHS' motion is granted.*fn1


In March 1975 Sims began work in Chicago with a GS-5 appointment in HHS'*fn2 Office of Financial Management ("OFM"). Though such an appointee could ordinarily expect promotion to GS-6 upon satisfactory completion of one year's service, Sims was not promoted when he became eligible in March 1976. On December 15, 1976 Sims complained to an HHS Equal Employment Opportunity ("EEO") Counselor, claiming discriminatory treatment because of his race and sex. Unable to resolve the complaint informally, the Counselor terminated counseling February 9, 1977.

Sims promptly filed a formal discrimination complaint, and an HHS investigation ensued from March to May 1977, followed by an unsuccessful attempt at informal adjustment in July 1977. In a lengthy November 1977 report HHS informed Sims of its Proposed Disposition of his complaint. It found Sims had not been discriminated against because of his race or sex, although HHS did identify some deficiencies in OFM's managerial personnel practices.

In early 1978, before HHS had proceeded with the formal hearing Sims had then requested, Sims's complaint was remanded to HHS by the Civil Service Commission ("CSC") for further specification of the issues in its Proposed Disposition. HHS then issued a detailed Revised Proposed Disposition in June 1979, again finding no discrimination against Sims and recommending minor managerial adjustments in Sims's employment record. Sims again requested a formal hearing, which was conducted by a Complaints Examiner from the EEO Commission (CSC's functional successor) in June and July 1980. On December 30, 1981 the Examiner filed an extensive report, finding no discrimination. HHS adopted the Examiner's report in full and informed Sims of its decision in May 1982.

In the meantime Sims had filed his Complaint in this Court August 3, 1979, after he had received the Revised Proposed Disposition and had renewed his request for a formal hearing before a Complaints Examiner. By joint motion of the parties, proceedings in this action were stayed July 8, 1980, pending completion of the Examiner's hearing and investigation, then in progress.

Jurisdictional Time Limitations

HHS poses three jurisdictional objections to Sims's 12 claims of discriminatory actions identified in the Complaint and in Sims's interrogatory answers.*fn3 HHS contends:

    1. Sims failed to present two of those actions
  to an EEO Counselor within 30 days of their
  occurrence, as required by
29 C.F.R. § 1613.214(a)(1)(i) (1981).*fn4

    2. Sims failed to present another six of those
  actions to an EEO Counselor at all, as required
  by Section 1613.213(a).*fn5

    3. Sims failed to plead or show the other four
  of those actions were in fact presented to an EEO
  Counselor, again as required by Section

HHS is correct in arguing Sims's need to demonstrate compliance with those administrative requirements. They are preconditions to suit, and this Court must dismiss the claims if the requirements have not been satisfied. Stanislaus v. Steorts, 530 F. Supp. 72, 74 (N.D.Ill. 1981) and cases cited; see also Gaballah v. Johnson, 629 F.2d 1191, 1198 (7th Cir. 1980); Newbold v. United States Postal Service, 614 F.2d 46, 47 (5th Cir.), cert. denied, 449 U.S. 878, 101 S.Ct. 225, 66 L.Ed.2d 101 (1980).*fn6

Sims's Complaint does allege all conditions precedent to this Court's jurisdiction have been complied with. But his only reference is to satisfying 42 U.S.C. § 2000e-16(c): a federal employee may file a civil action against an agency only "after one hundred and eighty days from the filing of [his] initial charge . . . if aggrieved . . . by the [agency's] failure to take final action on his complaint."

That is not enough, for properly promulgated administrative regulations like those relied on by HHS have the force of law. United States v. Nixon, 418 U.S. 683, 695-96, 94 S.Ct. 3090, 3101, 41 L.Ed.2d 1039 (1974). Every Title VII complainant against the federal government must seek relief in his agency according to applicable regulations as a precondition to suit. Brown v. GSA, 425 U.S. 820, 832, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976); Stanislaus, 530 F. Supp. at 74.

Sims's failure specifically to allege satisfaction of those administrative requirements is a jurisdictional defect in pleading. See 5 Wright & Miller, Federal Practice and Procedure § 1212, at 102; § 1350, at 549 (1969). Because the flaw could be cured by repleading, however, this opinion will proceed to the merits of HHS' contentions. For that purpose, the purportedly discriminatory actions fall into three time categories:

    (1) those preceding Sims's December 15, 1976
  complaint to the EEO Counselor;

    (2) those occurring after conciliation efforts
  ended February 9, 1977;

    (3) those occurring during the counseling

HHS' Pre-December 15, 1976 Actions

Only one of the two matters in this category — Sims's non-promotion complaint — requires discussion.*fn7 On that score Sims admits he knew his promotion was not forthcoming at the end of March 1976, nine months before he complained to the EEO Counselor. That delay is fatal under the predecessor of Section 1613.214(a)(1)(i).*fn8 Nor does HHS' later investigation of Sims's formal promotion discrimination complaint foreclose this Court's independent review of the timeliness of his initial filing. Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1017 (1st Cir. 1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980).

HHS' Post-February 9, 1977 Actions

By definition the five Sims claims based on conduct after EEO counseling efforts ended February 9, 1977 could not comply with Section 1613.213(a). Only one category of such claims raises a possible question: Sims's claim of retaliatory discrimination.

Courts disagree as to whether such a claim against a private employer is itself subject to Title VII administrative exhaustion and filing requirements. Compare Bickley v. University of Maryland, 527 F. Supp. 174, 176-79 (D.Md. 1981) with Haynes v. Mark, 520 F. Supp. 1183, 1184 (D.Colo. 1981). Such disagreement cannot however extend to the federal government as employer. Sovereign immunity principles require that every claim against the United States, including one of retaliatory discrimination, must meet the administrative preconditions to suit. Because the United States has consented to be sued under 42 U.S.C. § 2000e-16 and applicable regulations, "the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981), quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941).

Accordingly all complaints arising after the counseling period, like those arising before it, are barred from suit. It only remains to discuss events during the counseling period itself.

HHS' December 15, 1976 to February 9, 1977 Actions

Three of Sims's four claims of allegedly discriminatory conduct during the counseling period stem from denial of requested training.*fn9 In his responses to HHS' interrogatories Sims located three such denials in January 1977. Given that timing, those training denials could not of course have prompted Sims's original contact with the EEO Counselor. From that fact HHS asks this Court to decide — as a matter of fact — the lack-of-training complaints were not specifically brought to the Counselor's attention, so that the administrative regulation was not complied with.

Matters are not quite so simple. In the EEO Counselor's report she states:

  [Sims] feels he is being treated "different" from
  other employees re office rules, training, leave,
  and has not been promoted because of

To what does "training" in that report refer? HHS' November 3, 1977 Proposed Disposition says that "the most significant training" Sims complains of "is, for the most part, related to his training for a special assignment, the `1400 report,' in February or March 1976." That item is of course barred by the 30-day limitation, so discussing it with the Counselor would have been unavailing for current purposes.

What is more significant, however, is that it appears the Counselor's "Record of Pre-Complaint Processing" (in which the quoted sentence appears) was likely prepared at the time of the first interview (December 16, 1976) — note its use of the present tense throughout (as to what Sims "feels"). Under those circumstances Sims has provided no evidence at all that the alleged training denials during the counseling period — the complaints now sued upon — were also the subject of counseling. That being so, Sims fails for not having carried his burden to demonstrate he has satisfied the necessary preconditions for suit on those items. Stanislaus, 530 F. Supp. at 74.*fn10


Sims has failed to establish his satisfaction of the administrative preconditions to suit. This action is dismissed for want of subject matter jurisdiction.

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