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LOCKHART v. SULLIVAN

September 6, 1989

ELOISE LOCKHART, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D., Secretary D.H.H.S.; OTIS R. BOWEN, M.D.,; FRANCIS J. O'BYRNE, individually and as A.L.J.I.C., D.H.H.S., OHA; MICHAEL BERNSTEIN, individually and as Supervisory Attorney-Advisor, D.H.H.S., OHA; and OTHER UNKNOWN AGENTS, D.H.H.S., Defendants


Brian Barnett Duff, United States District Judge.


The opinion of the court was delivered by: DUFF

BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 DHHS investigated Lockhart's 1983 complaints and decided that they were meritless. Lockhart appealed this decision to the Equal Employment Opportunity Commission's ("EEOC") Office of Review and Appeals. The EEOC affirmed the DHHS's ruling in 1986. Lockhart did not appeal the EEOC decision to a United States district court within the thirty-day period established by law, see id. at § 2000e-16(c), and so action on the substance of Ms. Lockhart's 1983 complaints is finished.

 Finished, that is, unless DHHS retaliated against Lockhart for complaining -- an action which is a separate violation of Title VII. See id. at § 2000e-3(a) (unlawful employment practice to discriminate against person because he or she has filed Title VII charges); Judge v. Marsh, 649 F. Supp. 770, 781-82 (D.D.C. 1986) (applying § 2000e-3(a) to federal employees). In a pro se complaint filed in this court, Lockhart charges that DHHS retaliated soon after she filed her 1983 complaints. According to the complaint, these retaliatory actions prompted Lockhart to file a series of administrative charges and complaints beginning on October 1, 1984 -- charges that allegedly produced heightened retaliation.

 According to records which DHHS has produced to this court, Lockhart filed four EEO complaints in late 1984 and early 1985. *fn1" The first complaint filed November 14, 1984, alleged that DHHS had discriminted against her in not promoting her to a supervisory position in October 1984. The second and third complaints, filed December 12, 1984, alleged that DHHS discriminated in charging her with being absent without leave for 30 minutes in October 1984, and in requiring her to file a formal request for additional leave in November 1984. The third complaint also claimed discrimination and reprisal in the agency's proposal to suspend Lockhart in November 1984. The final complaint, filed March 7, 1985, claimed discrimination and reprisal in the agency's supervision of Lockhart in January 1985 and in constructively discharging her effective March 30, 1985.

 DHHS investigated Lockhart's 1984-85 complaints and proposed findings of no discrimination on all of them on December 12, 1986. Eight days later Lockhart requested a hearing before an EEOC Administrative Law Judge ("ALJ"). The hearing took place over April 4-6, 1988. Lockhart was represented by counsel at this hearing. In October 1988 the ALJ recommended a finding of no discrimination or reprisal against Lockhart. DHHS adopted the ALJ's recommendation on December 20, 1988, and gave Lockhart notice of its decision on January 14, 1989.

 At this point Lockhart had a choice: she could have sought review with the EEOC within 20 days of receiving DHHS's decision, or else appealed to a federal district court. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1613.281 (1988). *fn2" Lockhart decided to do both. She appealed DHHS's adverse decision on her 1984-85 complaints to the EEOC on January 20, 1989, and filed a two-count suit in this court on February 15, 1989. Count 1 of her suit charges employment discrimination in violation of Title VII. Count 2 alleges that DHHS, Otis R. Bowen, *fn3" Francis J. O'Byrne, Michael Bernstein, and other DHHS employees *fn4" violated her rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the Constitution, as well as her constitutional right to privacy. *fn5"

 DHHS's second argument is that Lockhart could not have appealed DHHS's decision on her 1984-85 complaints both here and before the EEOC, and thus this court lacks jurisdiction over them. While DHHS's argument had merit at the time Lockhart filed her complaint, see note 2 above, DHHS was done in by the efficiency of the EEOC. DHHS notified the EEOC's Office of Review and Appeals on March 6, 1989 of Lockhart's filing here; before this court had a chance to decide whether the federal courts have jurisdiction over Lockhart's appeal, the EEOC dismissed Lockhart's EEOC appeal on April 4, 1989. Lockhart has only one appeal now, as Title VII and the EEOC's regulations allow. This court thus has jurisdiction over Lockhart's appeal of her 1984-85 EEO complaints, and thus DHHS's motion to dismiss Count 1 is denied.

 The defendants next ask this court to dismiss Count 2 for not stating a claim upon which this court can grant relief. Count 2, as noted earlier, seeks relief for various constitutional infractions. While there is no federal constitutional or statutory provision which expressly allows persons to sue federal officers for such infractions, the Supreme Court has determined that certain constitutional rights imply a remedy of private suit. As the Court announced this rule in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), these implied rights of action to redress constitutional violations have become known as " Bivens suits."

 Notwithstanding the rule announced in Bivens, a person does not have the right to file a Bivens action any time a federal officer violates the Constitution. As the Court noted in Carlson v. Green, 446 U.S. 14, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980), the victim of a federal officer's constitutional wrong does not have a private right of action when "Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective," id. at 18-19 (emphasis in original), or when "'special factors'" counsel "'hesitation in the absence of affirmative action by Congress.'" Id. at 18, quoting Bivens, 403 U.S. at 396.

 The defendants contend that both of Carlson's limitations on Bivens suits are present here. They direct the court's attention to Brown v. GSA, 425 U.S. 820, 835, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976), where the Supreme Court held that Title VII and the procedures it contains in 42 U.S.C. § 2000e-16(c) were "the exclusive judicial remedy for claims of discrimination in federal employment." Brown teaches this court to look closely at Count 2, for if Lockhart states claims for discrimination in her employment, Title VII bars them; if her constitutional claims do not relate to employment discrimination, Title VII has no effect on them. See Ethnic Employees of Library of Congress v. Boorstin, 243 U.S. App. D.C. 186, 751 F.2d 1405, 1414-16 (D.C. Cir. 1985) (collecting cases demonstrating limits of Title VII preemption of constitutional claims of federal employees).


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