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LANGSTER v. SCHWEIKER

April 29, 1983

LEE
v.
LANGSTER, PLAINTIFF, V. RICHARD SCHWEIKER, IN HIS CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; JULIUS BERMAN, BOTH INDIVIDUALLY AND IN HIS FORMER CAPACITY AS DIRECTOR OF THE GREAT LAKES PROGRAM SERVICE CENTER OF THE UNITED STATES SOCIAL SECURITY ADMINISTRATION; LEEMAN FORREST, BOTH INDIVIDUALLY AND IN HIS CAPACITY AS DIRECTOR OF MANAGEMENT FOR THE GREAT LAKES PROGRAM SERVICE CENTER OF THE UNITED STATES SOCIAL SECURITY ADMINISTRATION; AND JUANITA CAROTHERS, BOTH INDIVIDUALLY AND IN HER CAPACITY AS ASSIST ANT DIRECTOR OF MANAGEMENT FOR THE GREAT LAKES PROGRAM SERVICE CENTER OF THE UNITED STATES SOCIAL SECURITY ADMINISTRATION, DEFENDANTS.



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

  MEMORANDUM AND ORDER

Plaintiff Lee V. Langster brings this action under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the First and Fifth Amendments to the Constitution, seeking back pay and damages arising from his non-selection for the position of Equal Opportunity Coordinator at the Great Lakes Program Service Center ("Great Lakes") of the United States Social Security Administration ("SSA"). Defendants are Richard Schweiker, in his official capacity as Secretary of the United States Department of Health and Human Services, Julius Berman ("Berman"), both individually and in his official capacity as Director of Great Lakes; Leeman Forrest, ("Forrest") both individually and in his official capacity as Director of Management at Great Lakes; and Juanita Carothers ("Carothers"), both individually and in her capacity as Assistant Director of Management.

As gleaned from the complaint, memoranda and exhibits, the following facts form the basis of this action. Between 1955 and 1981 plaintiff, a black male, was employed by Great Lakes ostensibly as a "claims adjuster," at the GS 10 salary level. Pursuant to a collective bargaining agreement, however, Langster spent all of his on-the-job time since September 1968 performing the responsibilities of his position as executive vice-president of Local 1395 of the American Federation of Government Employees. Among plaintiff's duties in this role was prosecution of grievances of union members, including charges of employment discrimination.

In December of 1975 the SSA invited applications for the newly created position of Equal Opportunity Coordinator, to be initially salaried at a GS-11 grade. Plaintiff applied for this position and was placed fifth on a list of those believed "best qualified for the job."*fn1 Most persons on this list were interviewed by a panel of Great Lakes managerial employees; plaintiff and one other applicant were interviewed only by Juanita Carothers. Carothers passed along her evaluation of Langster to Julius Berman, who, in consultation with Leeman Forrest, selected a female for the position.

Complaining of his failure to receive the promotion, plaintiff filed an administrative charge of discrimination on July 21, 1976, which was subsequently dismissed in March 1978, after an investigation by the Department of Health, Education and Welfare. Still pursuing his administrative remedies, plaintiff requested and received a full hearing before a complaint examiner. After the examiner found "no discrimination by reason of sex, age or reprisal" (Plaintiff's Exhibit D) Langster brought this suit in federal court.

The first amended complaint is in five counts. In Count I plaintiff alleges that Carothers' negative evaluation of him was a result of retaliation for his union activities, in violation of Title VII, 42 U.S.C. § 2000e-16(a). More specifically, plaintiff states that Carothers disliked him because of numerous actions he had taken pursuant to his duties as executive vice-president of Local 1395, including challenging her appointment as assistant director of management and prosecuting a complaint against her on behalf of another employee.

Count II alleges that the management of Great Lakes engaged in a pattern or practice of discrimination against black males in making promotions; that defendant's choice of a female for the position plaintiff sought constitutes discrimination based on sex and race, and that both forms of discrimination are proscribed by Title VII. In Count III plaintiff avers that the management of Great Lakes engaged in a pattern or practice of discriminating against persons over age 40 in selecting employees for promotion. Since plaintiff was over forty at the time the complained-of conduct occurred, and the person chosen for the position was 36, plaintiff alleges that his non-selection was due to his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a(a).

Counts IV and V are related insofar as both attempt to state a cause of action under the principles set forth by the Supreme Court in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Plaintiff alleges in Count IV that the reprisals outlined in Count I were also intended to punish him for participating in activities protected by the First Amendment and thus are unconstitutional. Count V, tracking the allegations in Count II, alleges that the pattern or practice of discrimination against black males is actionable directly under the Fifth Amendment.

Finally, in addition to back pay, an increase in pension benefits, fees and costs, plaintiff seeks punitive damages of $100,000 from Berman, Forrest and Carothers in their individual capacities.

In response to these allegations defendants have filed four motions:*fn2 (1) a motion to strike allegations of race discrimination; (2) a motion to dismiss the complaint as it concerns Berman, Forrest and Carothers; (3) a motion to strike the prayer for punitive damages; and (4) a motion to strike the jury demand. As plaintiff notes, the last three will be considered together since they all turn on the same question — the sufficiency of the allegations in Counts IV and V.

I Motion to Strike the Allegations of Racial Discrimination

Defendants contend that any allegations of race discrimination in Counts II and V should be stricken because plaintiff did not allege race discrimination in his administrative complaint filed with the EEOC on July 21, 1978. A failure to exhaust administrative remedies bars plaintiff from raising the question of racial discrimination in this court.

It is true that both private and government employees must first present their grievances in an administrative forum so that the agency has an opportunity to rectify any discrimination that may have occurred. At the same time, this exhaustion requirement should not be read to create useless procedural technicalities, which are "particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972).*fn3 Thus, administrative complaints are to be construed liberally, in accordance with the remedial purpose of Title VII, as well as the objectives of the exhaustion doctrine. In the context of this case these principles translate into the following inquiry: did the agency consider the possibility that race played a part in plaintiff's failure to be promoted, regardless of plaintiff's "literary acumen," or lack thereof, in stating the claim in his administrative complaint. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465 (5th Cir. 1970).

The charge filed with the EEOC concededly had mixed signals. On the one hand, plaintiff clearly indicates in his answer to item 6 that he believed he was discriminated against because of his race. On that line plaintiff was asked the basis for the discriminatory conduct, and he typed "sex, age and color," and stated that he was black, male and age 49. In other parts of the complaint, however, plaintiff just as clearly ascribes the discrimination as being a result only of his sex, age, and in retaliation for filing other complaints — omitting any mention of race. (See Plaintiff's Exhibit A.)

While the complaint, therefore, is not a model of clarity, the answer to item 6 put the agency on notice as to plaintiff's claims based on race. More importantly, the administrative record discloses that the agency investigated the allegation of racial discrimination. In his final report the director of the special staff for equal opportunity of the (then) Department of HEW concluded that "the evidence does not support Mr. Langster's allegations of racial, sex and/or age discrimination or occupational reprisal in the promotion actions about which he is concerned."*fn4 (Plaintiff's Exhibit C.) (Emphasis supplied).

It is somewhat troubling that during a formal administrative hearing — requested by plaintiff after the issuance of the adverse final report — the question of race discrimination was never adjudicated. Rather, the sole cause for plaintiff's non-promotion discussed at that hearing was discrimination due to sex, age and reprisals. It may well be that plaintiff did not consider his racial discrimination claim as particularly persuasive because the selectee was black. Be that as it may, this court concludes that the agency had sufficient opportunity to consider the claim of race discrimination, whether or not persuasive, so that the objectives of the exhaustion doctrine have been satisfied. "Exhaustion under Title VII, like other procedural devices, should never be allowed to become so formidable a demand that it obscures the clear Congressional purpose of `rooting out . . . every vestige of employment discrimination within the federal government.' We think that wholesome objective would be disserved by requiring in the name of exhaustion more than [has already been done]." President v. Vance, 627 F.2d 353,363 (D.C.Cir. 1980) (footnotes omitted).*fn5

  II. Motions to Dismiss Individual Defendants, to Strike
      the Prayer for Punitive Damages and to Strike the Jury
      Demand

Plaintiff, at least implicitly, concedes that were he alleging claims only under Title VII and the ADEA, he would have no right to a jury trial, nor would he be entitled to punitive and exemplary damages. See Great American Savings & Loan Ass'n. v. Navotny, 442 U.S. 366, 375, 99 S.Ct. 2345, 2350, 60 L.Ed.2d 957 (1979) (jury trial is not available under Title VII); Lehman v. Nakshran, 453 U.S. 156, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (trial by jury in an action against the federal government is not permitted under ADEA). Further, in civil actions based on discriminatory practices by a federal agency, the only proper party defendant is the head of the involved agency, and thus claims against Carothers, Berman and Forrest would be impermissible. 42 U.S.C. § 2000e-16(c). See Newbold v. United States Postal Service, 614 F.2d 46 (5th Cir.), cert. denied, 449 U.S. 878, 101 S.Ct. 225, 66 L.Ed.2d 101 (1980); Hackley v. Roudebush, 520 F.2d 108 (D.C.Cir. 1975); Carver v. Veterans Administration, 455 F. Supp. 544 (E.D.Tenn. 1978); Brooks v. Brinegar, 391 F. Supp. 710 (W.D.Okla. 1974). Under Counts IV and V, however, plaintiff argues that he may proceed against individual defendants, can request punitive damages and is entitled to a trial by jury. Accordingly, resolution of these motions centers on the viability of these latter two counts. And whether plaintiff states a Bivens cause of action in these counts turns on two issues. First, are the claims in Counts IV and V preempted by the holding in Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 1961 (1976)? If not, should the court imply a cause of action under Bivens? The first question relates to pre-emption of existing remedies; the second relates to the implication of remedies. While the factors which bear upon both are in many respects similar, they are separate concepts.

In Brown, the Court considered whether § 717 of Title VII is the exclusive judicial remedy for government workers aggrieved by employment discrimination. The plaintiff in Brown, a federal employee allegedly denied a promotion because of his race, sued his agency and his superiors under Title VII and under the Civil Rights Act of 1866, 42 U.S.C. § 1981. After examining the legislative history of § 717, and its ...


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