Greenberg, Jack; and Others, 1995, undated - 110 of 114

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 74-3746

E. J. LAUREL,
Plaintiff-Appellant

- v-
UNITED STATES OF AMERICA, et al.f 

Defendants-Appellees

On Appeal From The United States District Court 
For The Southern District of Texas

BRIEF FOR N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL FUND, INC,, AS AMICUS CURIAE

JACK GREENBERG JAMES M. NABRIT, III CHARLES STEPHEN RALSTON
*  MORRIS J. HALLER

BARRY L. GOLDSTEIN—  10 Columbus CircleNew York, New York 10010
Attorneys for the N.A.A.C.P, 
Defense and Educational Fund,

Lecju 1 
Inc.



TABLE Or CONTENTS P age

Table of Contents......................................i
Table of Authorities.................... .......... ^
Interest of Amicus Curiae........................ 1
Introduction..................................... 3
ARGUMENT

I. §717 OF TITLE VII, ON ITS FACE, REQUIRES A TRIAL DE NOVO IN CIVIL ACTIONS BROUGHT 
PURSUANT TO ITS PROVISIONS.............  7

II. §717 OF TITLE VII, AS A MATTER OFLEGISLATIVE HISTORY, REQUIRES A TRIAL 
DE NOVO IN CIVIL ACTIONS BROUGHT
PURSUANT TO ITS PROVISIONS.............  15

Dissatisfaction With Administrative Remedies..... 15
Intent To Accord Federal Employees The Same

Enforcement Rights As Private Employees....... 28
III. THE STATUTORY PURPOSE OF §717 REQUIRES 

A TRIAL DE NOVO IN WHICH LITTLE WEIGHT SHOULD BE GIVEN THE RECORD DEVELOPED DURING THE CSC DISCRIMINATION COMPLAINT 
PROCESS................................ 33

Judicial Precedent and §717 Statutory Purpose.... 33
Part 713 Regulations On Their Face...............  39
Administration Of The Regulations................  42

IV. PERSUASIVE CASELAW SUPPORTS THE REQUIRE­
MENT OF A TRIAL DE NOVO IN FEDERAL 
EMPLOYMENT CASES BROUGHT UNDER TITLE 
VII................................... 54

V. THE RIGHT TO A TRIAL DE NOVO IS NOT WAIVED 
WHEN THE EMPLOYEE ELECTS TO HAVE A FINAL 
AGENCY DECISION WITHOUT UNDERGOING AN ADMINISTRATIVE HEARING, AS SPECIFICALLY 
PROVIDED BY §717 (c).................... 59

CONCLUSION....................................... 63

i



TABLE OF AUTHORITIES

Cases
Aetna Ins. Co. v. Kennedy, 301 U.S. 389 (1937)
Alexander v. Gnrdner-Denver Co., 39 L.Ed.2d

147 (1974).............................

Beverly v. Lone Star Lead Const. Corp., 437
F.2d 1136 (5th Cir. 1971)..................

Bolling v. Sharpe, 347 U.S. 497 (1954)...........

Bowers v. Campbell, 8 EPD 51̂ 5̂2 (9th Cir. 1974)...

Calder v.Bull, 3 Dali. 386 (1789)............... .

Carreathcrs v. Alexander, 7 EPD f9379 (D. Colo.
(1974).....................................

Congress of Racial Equality v. Commissioners, 
270 F.Supp. 537 (D. Md. 1967).........

Engle v. Davenport, 271 U.S. 33 (1925)

Fekete v. United States Steel Corp., 424 F.2d 
331 (3rd Cir. 1970)...................

Flowers v. Local 6, Laborers International Union 
of North America, 431 F.2d 205 (7th 
Cir. 1970)...............................

PAGE

61

4, 34,40,48,55,59,60

2,12,28,29 

7

55

14

55

10, 11 

13

12.28.29

12.28.29

Griffin v. U.S. Postal Service, 7 EPD [̂9133 
(M.D. Fla. 1973).................... 54,55, 57



Cases
I

Griggs v. Duke Power Co., 401 U.S. 424 (1971)..... 549

Gnotta v. United States, 415 F.2d 1271 (8th Cir. 1969) cert, denied 397 U.S. 934
(1970)..................................... 10*11

Guilday v. U.S. Justice Dept, 43 LW 2195 (D. Del.
October 22, 1974)..........................  56,58

Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.
1973)....................................  31

Harris v. Nixon, 325 F.Supp. 28 (D. Colo.
1971)..................................... 10

Hassett v. Welch, 303 U.S. 303 (1933)..... ...... 13

Hodges v. Easton, 106 U.S. 408 (1882)........... 61

Hurd v. Hodge, 334 U.S. 24 (1948)............... 7

Interstate Consol. Street R. Co. v. Massachusetts,
207 U.S. 79 (1907).........................  13

Jackson v. U.S. Civil Service Comm'n., 7 EPD^9134 (S.D. Tex. 1973)....................  5456,->7

Jenkins v. United Gas Corporation, 400 F.2d 28
(5th Cir. 1968).........................  2 * 5

Johnson v. Georgia Highway Express, 417 F.2d 1122
(5th Cir. 1969)...............•.......... 2

Johnson v. U.S. Postat Service, 497 F.2d 12
(5th Cir. 1974)...........................  54

TABLE OF AUTHORITIES [Cont'd.]

Page

iii



TABLE OF CONTENTSfConi'd. 1
I jPago

Johnson v. Zerbst, 304 U.S. 458 (1938)........... 61

Kendall v. United States, 12 Pet. 524, (1838).... 13

King v. Georgia Power Co., (259 F.Supp.
943 (N.D. Ga. 1968)............'-- '........  13

McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973)................................. 2, 4, 12,34, 50,55,59,60

Miller v. Amusement Enterprises, Inc., 426 F.2d
534 n. 14 (5th Cir. 1970)....................  1

Morrow v. Crisler, 470 F.2d 960 (5th Cir. 1973) 
aff'd en banc, 491 F.2d 1053 (5th Cir.
1974)....................................... 5

Morton v. Mancari, 41 L.Ed.2d 290 (1974)...........  15, 17, 37,56

Newman v. Piggie Park Enterprises, 390 U.S.
400 (1968).................................. 4,

Oatis v. Crown-Zellerbach Corp., 398 F.2d 496
(5th Cir. 1968)............................. 53

Ohio Bell Telephone Co. v. Public Utilities
Comm. 301 U.S. 292 (1937)..................  61

Reynolds v. Wise, 375 F.Supp. 145 (N.D.Tex. 1974)................................. 54, 5j,57
Robinson v. Klassen, No. LR-73-C-301 (E.D.

Ark. October 3, 1974)...................... 56

^ 'O•



TABLE OF CONTENTS [Cont'd.]

Paqe

Robinson v. Lorillard Corp., 444 F.2d 791
(4th Cir. 1971) cert, dismissed 404 U S 1006 (1971).... 1? 20, 29

Phillips v. Martin Marietta Corp.. 400 U 9 542 (1971)........ 2

Smith v. Universal Services, Inc., 454 f 2d 154 (5th Cir. 1972).... 12,28,29,34
United States v. H.K. Porter Company, N.D. Ala. 1968, 226 F.Supp. 40.... 13

United States v. Standard Brewery 251 U.S. 210 (1920)....... 14

United States v. Tappan, 11 Wheat. 419 (1826) 10

Wisconsin Central R.co. v. United States 164 U.S. 190 (1896)..... 9

v



STATUTES

^ N>- lJ

Paqe

5 U.S.C. §702 .............................. 11
5 U.S.C. §706.............................. 11,56
42 U.S.C. §2000e-5......................... 9, 10,12,13, 15,28,29, 

31, 59
42 U.S.C. §2000e-16....................... passim

EXECUTIVE ORDERS
E.O. 11246............................... 7,10
E.O. 11375............................... 7,10
E.O. 11478..................... .......... 7,10

REGULATIONS
5 C.F.R. §713.213........................ 39
5 C.F.R. §713.215........................ 39
5 C.F.R. §713.216........................ 40
5 C.F.R. §713.217........................ 40
5 C.F.R. §713.218........................ 40,41
5 C.F.R. §713.221........................ 41
5 C.F.R. §713.283........................ 41

VI

r



OTHER AUTHORITIES

M. Brewer, Behind the Promises: Equal EmploymentOpportunity in the Federal Government (Public 
Interest Research Group 1972)...............

Brief for Appellees, Hackley v. Johnson,No. 73-2072 (D.C. Cir. 1974)................
Conference Rep. No. 92-681, on H.R. 1746,92nd Cong., 2d Sess. (1971).................

119 Cong. Rec. §1219........................
Hearings on H.R. 1746 Before the General Subcomm.on Labor of the House Comm, on Education and 

Labor, 92d Cong., 1st Sess. (1971)..........

Hearings on H.R. 13517 Before the General Subcomm. on Labor of the House Comm, on Education and Labor 91st Cong., 1st. 
& 2d. Sess (1970).....................

Hearings on S.2453, Before the Subco.im. on Labor of the Senate Comm, on Labor and Public 
Welfare, 91st. Cong., 1st Sess. (1969)---

Hearings on S.2515, S.2617 & H.R. 1746 Beforethe Subcomm. on Labor of the Senate Comm, 
on Labor and Public Welfare, 92d Cong., 
1st. Sess. (1971)........................

H.R. Rep. No. 92-238, on H.R. 1746, 92d
Cong., 1st Sess (1971)...................

Page

42,43,52

62

29
29

21,23,26, 
27, 32

16,21,22,25,
27,32

16,17,31

21,22,26,27,32

17,22,28,35, 
37,43,51

I. Kator, Third Generation Equal Employment Opportunity, Civil Service Journal 
(July-Scptember 1972)...............

Letter from Robert E. Hampton, Chairman, CSC, by Arthur F. Sampson. Acting Administrator, GSA, of June 18, 1973.
Note, Racial Discrimination in the Federal 

Civil Service 38 Geo. Wash. L. Rev.
265 (1969)......................... .

vii



OTHER AUTHORITIES [Cont'd.]

Sape & Hart, Title VTI Reconsidered: The Equal Opportunity Act of 1972, 40 Geo. Wash.
L. Rev. 824 (1972).......................... 11

Senate Rep. No. 92-415, On S. 2515, 92d Cong.,1st Sess. (1971)............................  8,19,22,24,28,35,38,51
Staff of Subcomm. On Labor of the Senate Comm.on Labor and Public Welfare, 92d Cong., 2d Sess., Legialative History of the Equal 

Employment Opportunity Act of 1972(Comm. Print 1972))Legislative Hisotyr].... passim
U.S. Civil Service Conn'n. BAR Annual Report ot the Commissioners for FY 1974,

/Attachment 2............................... 44
U.S. Civil Service Conn'n. Discrimination Complaint Examiner's Handbook (April1972)............................... .....  42,44,46,48,49, 50
U.S. Civil Service Conn'n. DiscriminationComplaint Procedures................. 81
U.S. Civil Service Conn'n., FPM Letter

No. 713-17, Attachment 1.................. 39
U.S. Civil Service Conn'n., InvestigatingComplaints of Discrimination in Federal

Employment (Rev. October 1971)...........  42,45,46,48
U.S. Civil Service Comm'n., Matter of Jones(BAR decision of October 4, 1974).......... 50
U.S. Civil Service Comm'n., Memorandum on Govern­ment Equal Employment Opportunity Counseling 

and Discrimination Complaint Activity, Fiscal 
Year 1972 thru Fiscal Year 1974
(August 20, 1974)......................... 43

U.S. Civil Service Comm’n., Memorandum on Precom­plaint Counseling and Discrimination Com­
plaint Activity During Fiscal Year 1974 
(August 20, 1974)....................... . 43

Page

viii



OTHER AUTHORITIES [Cont'd.]
Page;

U.S. Commission on Civil Rights, The FederalCivil Rights Enforcement Effort -
A Reassessment (1970)......................  40

U.S. Commission on Civil Rights, The Federal Civil Rights Enforcement Effort -
A Reassessment (1973)......................  8,47

ix



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 74-3746

E. J. LAUREL,
Plaintiff-Appellant,
—v-

UNITED STATES OF AMERICA,' et al . ,
Defendants-Appellees.

On Appeal From The United States District Court For The Southern District of Texas

BRIEF FOR N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL FUND, INC., AS AMICUS CURIAE*

Interest of Amicus Curiae
The NAACP Legal Defense and Educational Fund, Inc., 

has for many years been engaged in civil rights litigation 
in this Court and in district courts throughout the Fifth 
Circuit. See Miller v. Amusement Enterprises, Inc., 426 
F.2d 534, 539, n.14 (5th Cir. 1970). Following the enactment 
of Title VII of the Civil Rights Act of 1964,attorneys 
associated with the Legal Defense Fund have participated in

^Counsel for both parties have consented to the filing 
of this Brief, pursuant to F.R.A.P., Rule 29.



many of the leading cases decided by this Court and the 
Supreme Court that have resulted in Title VII being given 
a broad and expansive interpretation, both procedurally and 
substantively, so that the Act could accomplish the goal of 
Congress and serve as an effective weapon against employment 
discrimination. See, e.g., Johnson v. Georgia Highway Express,
417 F.2d 1122 (5th Cir. 1969); Jenkins v. United Gas Corp­
oration, 400 F.2d 28 (5th Cir. 1968); Beverly v. Lone Star 
Lead Const. Corp., 437 F.2d 1136 (5th Cir. 1971); Phillips 
y. Martin Marietta Corp., 400 U.S. 542 (1971); McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).

When the 1972 amendments to Title VII that made the 
federal government subject to the Act's provisions were enacted, 
the Legal Defense Fund and cooperating attorneys became in­
volved in cases against the federal government nationwide.
In this Circuit alone the Fund has litigation pending in dis­
trict courts in Alabama, Georgia, Florida, and Texas. Agencies 
being sued include, inter alia, the Army, Navy, and Air Force, 
the Post Office, and the National Aeronautic and Space Administration 

In every one of our cases, and, we believe, in every cosc 
brought against it nationwide, the government has consistently 
raised technical and narrow objections whose purpose is so to 
restrict the scope of the case as to make it impossible for the 
federal courts to review government employment policies and to 
grant the kind of relief the United States itself has con-

-2

r



sistently maintained should be afforded against private and 
state and local government employers. This case involves only 
one of the government's arguments —  that a government employee 
is not entitled to a trial de novo in a Title VII action. The 
Court should be aware, however, of this contention s re­
lationship to the other principle argument consistently made 
by the government —  that federal employees cannot maintain
a class actiai under Title VII.

The result of the acceptance by the federal courts of 
these contentions would be to reduce the federal courts to a 
rubber stamp; their role would merely be to review an ad­
ministrative "record" compiled by agents of the defendant 
agency concerning what happened to a single employee. No broad 
independent inquiry into or assessment of the challenged 
employment practices would ever be conducted. The government, 
the largest single employer in the nation, would be immune from 
the same judicial scrutiny to which all other employers are 
subject. For the reasons set out below, amicus curiae con­
tends that such a result would be unwarranted and unjust.
The grant of summary judgment should be reversed, and plaintiff 
should be permitted to go forward and litigate his claim
of discrimination on the merits.

Introduction
The kind of hearing the federal courts provide employment 

discrimination complaints is what principally determines the 
quality of judicial enforcement of Title VII, a "policy Con-

-3-



Newman v. Piggiegress considered of the highest priority."
Park Enterprises. 390 U.S. 400, 402 (1968) cited in Alexander v.
Gardner-Donvor Co., 39 L.Ed.2d 147, 158 (1974). The question
has been resolved in favor of trial de novo in private and state 
or local government employment discrimination litigation in a 
variety of contexts; the same reasons require a similar resolu­
tion in federal employment discrimination litigation. The 
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
799 (1973), stated that “court actions under Title VII are de_ 
novo proceedings" notwithstanding that the EEOC had rendered a 
finding of a no reasonable cause. Similarly in Alexander v. 
Gardner-Denver Co., supra, the Court held that a trial do novo 
is not foreclosed by a prior arbitral decision of no reasonable 
cause. The common thread of Title VII law is that it is imper­
missible "to engraft on the statute a requirement which may in­
hibit the review of claims of employment discrimination."
McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 798-99.

"[C]ourts should ever be mindful that Congress, in en­
acting Title VII, thought it necessary to provide a judicial
forum for the ultimate resolution of discriminatory employment 
claims. It is the duty of courts to assure the full availability
of this forum." Alexander v. Gardner-Denver Co., supra, 39 L.Ed.2d
at 165 no.21. Employment discrimination prohibited by Title VII 
quite clearly raises different issues than ordinary federal 
employee adverse actions, issues the federal courts are best 
suited to decide. "The objective of Congress in the enactment



of Title VII . • • was to achieve equality of employment oppor
tunities and remove barriers that have operated in the past to 
favor an identifiable group of white employees over other 
employees." Griggs v. Duke Power Co., 401 U.S. 424, 429-30 
(1971). In short, federal employees are entitled to no more and 
no less than what employees of a private company, see, e_._cj. < 
Johnson v. Georgia Highway Express, 417 F.2d 1122 (5 th Cir^ 1969),
or a state or local governmental entity, see, e.g., Morrow v. 
Crisler, 479 F.2d 960 (5th Cir. 1973), aff'd on banc, 491 F.2d 
1053 (5th Cir. 1974), are entitled to under Title VII and the 
Constitution.

In Part I we show that the statutory language of §717 of 
Title VII of the Civil Rights Act of 1964, added by the Equal 
Employment Opportunity Act of 1972, 42 U.S.C. §2000 (e) -16(a), 
unquestionably requires a trial de novo of claims of racial dis­
crimination in federal employment. Because the face of the 
statute is unequivocal, canons of statutory construction dictate 
that statutory analysis alone settles the question. Nevertheless 
in Part II we show that legislative history, without contradition 
also makes clear what the statute in fact says, that a trial 
de. novo is required. The question of what standard of scrutiny 
the federal district courts may use in adjudicating federal 
employ non t discrimination was settled by Congress in 1972 . We 
demonstrate in Part III, however, that present CSC procedures 

federal employment discrimination complaints infor processing



light of the statutory purpose to eliminate racial discrimi­
nation from federal employment also dictate a trial dja novo. 
Persuasive caselaw, as set forth in Part IV, is in agreement 
with this reading of the statute. It follows, as we show in 
Part V, that federal employees do not waive their right to a 
plenary judicial trial on the merits by electing an agency 
decision without an administrative hearing.

-6-

r



A R G U M K N T

I .

6 717 OF TITLE VII, ON ITS FACE, REQUIRES 
1 TRIALDE NOVO IN CIVIL ACTIONS BROUGHT 
PURSUANT TO ITS PROVISIONS.

The declaration of purpose and policy in S 717<n' that'
"All personnel actions affecting employees or applicants . . .
in executive agencies . . .  be made free from any discrimination
based on race, color, religion, sex or national origin" merely
reiterates prior declarations in E.o. 11246, § 101 of September
24, 1965, E.O. 11375. § 101 of October 13, 1967 and E.O. 1147S
§ 1 of August 8, 1967. It has of course been the law since
Hurd v. Hodge, 334 U.S. 24 (1948) and Bolling v. Sharpe, 347

civil rights legislation and 
U.S. 497 (1954) that/the Fifth Amendment due process
clause prohibit any racial discrimination by the
federal government. Moreover, § 717(b) that spells out the
remedial, affirmative action and review‘responsibilities of
federal agencies, is similar to obligations imposed by successively
more detailed Executive Orders. Compare § 717(b) with E.O.
11478 §<$ 2 — 5. The derivative character of the non-discrimination
rights guaranteed to federal employees is indicated by § 717(e)
which states that, "Nothing contained in the Act shall relieve
any Government agency or official of its or his primary
responsibility to assure non-discrimination in employment as
required by the Constitution and statutes or of its or his
responsibilities under Executive Order 11478 relating to equal



employment opportunities in the Federal Government."
The manifestly new element in § 717 is the express 

remedial provision that an aggrieved federal employee may "file 
a civil action" naming the head of his agency as defendant without

1/

1 / The Senate report states, "The bill adds to Title VII a new 
Section 717 (Section 11 of the bill) making clear the obligation of the Federal Government to make all personnel decisions free 
from discrimination based on race, color, sex, religion or national 
origin." (emphasis added) Senate Rep. No. 92-415, on S.2515,
92d Cong., 1st Sess. at 12 (1971); Staff of Subcomm. on Laborof the Senate Comm, on Labor and Public Welfare, 92d Cong.,2d Sess., Legislative History of the Equal Employment Opportunity 
Act of 1972 at 921 (Comm. Print 1971) [Legislative History] .
See also. Legislative History at 1723 (Comment of Sen. Cranston 
that "these [717] provisions . . .in many respects only codify
requirements presently contained in Executive Oiders and the 
Constitution") 1968 (Comment of Sen. Williams).

The u . S. Commission on Civil Rights, charged with the 
legal duty of monitoring federal civil rights enforcement, 
is of the same opinion.

The new law clearly strengthens the 
position of CSC in terms of its relationship to other Federal departments and agencies.However, what it provides, with few exceptions, is nothing but an affirmation of power CSC already possessed under the previous Executive Orders 8/ —  powers which CSC heretofore chose 
to exercise in a limited manner.

8/ Actions CSC has recently taken—  such as changing the requirements for affirmative action plans and developing procedures under 
which it can assume responsibility for a 
grievance filed wi th an agency' are congruent with the authority CSC had under 
Executive Order 11478. U-S. Comm, on Civil Rights, The Federal Civil Rights Enforcement 
Effort - A Reassessment 45 (1973)

-8-



completely exhausting available administrative remedies.
§§ 717(c) and 717(d) provides that:

(c) Within thirty days of receipt of notice of final action taken by a department, 
agency, or unit referred to in subsection 717(a) or by the Civil Service Commission 
upon an appeal from a decision or order of 
such department, agency, or unit on a complaint 
of discrimination based on race, color, 
religion, sex or national origin, brought pursuant to subsection (a) of this section, 
Executive Order 11478 or any succeeding Executive orders, or after one hundred and 
eighty days from the filing of the initial charge with the department, agency, or unit
or with the Civil Service Commission on appeal from a decision or order of such department, 
agency, or unit, an employee or applicant for 
employment, if aggrieved by the final disposition of his complaint, or by the failure 
to take final action on his'complaint, may file 
a civil action as provided in section 706, in 
which civil action the head of the department, 
agency, agency, or unit, as'appropriate, shall 
be the defendant.

(d) The provisions of section 706(f) 
through (k) as applicable, shall govern civil actions brought hereunder. 2/

2/ The phrase "as applicable" merely refers to those sections 
dealing with the EEOC and the Attorney General in § 706(f) - (k)
which are obviously inapplicable to civil actions against the 
federal government. This intent .is clear from the Section-By- 
Section Analysis of H. R. 1746, The Equal Employment Opportunity Act of 1972 explaining the major provisions of the 1972 Act, as 
reported from the Conference Committee which states that, "The provisions of Sections 706(f) through (k), concerning private civil actions by aggrieved persons, are made applicable to aggrieved 
Federal employees or applicants for employment." Legislative 
History at 1851. Moreover, construction of a statute rendering meaningless a reference to another statute is not favored, "the 
explicit language of the statute cannot thus be done away with." 
Wisconsin Central R. Co. v. United States, 164 U.S. 190, 202 
(1896).



None of the Executive Orders had expressly conferred such a 
right of action or specifically waived the sovereign immunity 
of the federal government, see, E.O. 1146, § 104; E.O. 11375,
§ 104; E.O. 11478, § 4. The courts had been reluctant to imply 
access to the courts, see, e.g., Gnotta v. United States, 415 
F .2d 1271, 1277-78 (8th Cir. 1969), cert, denied, 397 U.S. 934 
(1970); Congress of Racial Equality v. Commissioners, 270 F. Supp. 
537, 542 (D. Md. 1967), or permitted only limited review of the
administrative record, see, e.g., Harris v. Nixon, 325 F. Supp.
28 (D. Colo. 1971). §§ 717(c) and 717(d) redressed the prior depr
vation of any or very limited judicial review of agency disposition 
of complaints of employment discrimination, by their terms giving 
federal employees the same remedial protection as private and 
state or local government employees enjoy under provisions of 
§ 706. It should be clear that narrow construction of judicial 
scrutiny, reducing the federal courts to the role of rubber 
stamp for agency dispositions of complaints of employment 
discrimination, would nullify the only substantive change in 
the law effected by § 717. Hie long standing rule of con­
struction is that courts may not construe a statute in such a 
way that its provisions are rendered nugatory. See, e.g.,
United States v. Tappan, 11 Wheat. 419, 426 (1826).

A trial do novo is also required by express terms of the 
statute. First, § 717(c) provides that an aggrieved employee 
••may file a civil action as provided in section 706" (emphasis 
added) and § 717(d) states that, "The provisions of section 
706(f) through (k) , as applicable, shall govern civi J. _'l c! -3 
brought hereunder" (emphasis added). §§ 706(f) - (k), specifically

-10-



incorporated by §§717(c) and (717)d, speaks throughout of 
"civil actions." The specific statutory use of "civil action" 
plainly means a district court trial proceeding, not mere 
judicial review of an administrative record. Constrast the 
statutory language of § 10(a) of the Administrative Procedure

.

Act, 5 U.S.C. § 702, which describes the general right of review 
from administrative proceedings in terms of, "A person suffering 
legal wrong because of agency action, or adversely affected or 
aggrieved by agency action within the meaning of a relevant 
statute, is entitled to judicial review thereof." For the scope 
of review under the APA, see 5 U.S.C. § 706. § 717(c) is
clearly in derogation of the limited APA judicial review provisions 
which would control in the absence of specific statutory language. 2a/ 

Second, § 717 fails to draw any distinction between 
judicial scrutiny when the administrative process has not been 
initiated within 180 days, is incomplete, or is final either !
at the agency or CSC level. Only the requirement of a trial
de novo in every case no matter its administrative posture
comports with this specific right of action framework in which
employment discrimination complaints need only partially exhaust
administrative procedures before seeking review. Before enactment
of 717(c), the courts, sec, e.g., Gnotta v. United States, supra:

Harris v. Nixon, supra.Congress of Racial Equality v. Commissioner, supra,/and thc CSC, 
see, e.g., citations to specific parts of hearings, i nfra, at 
n. 6 , had considered the question of judicial review only in terms 
of review a fter final agency or CSC action. congress made clear

2a/ "Unlike review of agency actionPurSUant to section 10 of tit Procedure Act whereby the court merely determines whether an 
agency's action is supported by substantial evidence, on action by an aggrieved federal employee under the 1972 Act requires a 
trial de novo." 3ape « Hart, Title VII Reconsidered: The Equal

2
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• • .. . c flpfprence to prior- administirstiveby express provision that this deference eu v

action was no longer the law.
Third, § 706, specifically incorporated by §§ 717(c)

and 717(d), provides inter alia that private employees and state 
or local government employees may bring civil actions against 
their employer for employment discrimination. Prior to 1072, 
the federal courts had made clear that plaintiffs suing under 
§ 706 were entitled to a trial do novo. See, , Robi nson_'m
tori Hard corp., 644 F.2d 791, SCO (4th Cir. 1971), cerH. dis­
missed, 404 U.S. 1006 (1971): Beverly V. bone Star bead Con-

p 2d 1136, 1140-42 (5th Cir. 1971): Flowers struction Corp., 437 F.2d
V. local 6 laborers International Union of Port)' America.
431 F .2d 205, 206-08 (7th Cir. 1970): Fekete_v.,. United States 
Steel Corp.. 424 F.2d 331. 334-36 (3rd Cir. 1970). Smithy.
■ services. I n c , 454 F.2d 154, 157 (5th Cir. 1972),
decided before enactment, had also stated the prevailing rule 
that agency action in private employment "is not agency action 
of a quasi-judicial nature which determines the rights of the 
parties subject only to the possibility that the reviewing court: 
might conclude that the EEOC)s actions are arbitrary, capricious 
or an abuse of discretion." but "takes on the character of a 
trial do novo, completely separated from the actions of the

Employment Opportunity Act of 1972, 
(1972). The authors are, respectlv 
of Congressional Affairs, 22CC, 
General oubcomm. on Labor of the n.

1+0 Geo. Wash. L.R. 829-,857 
ely, Deputy Director, Office 
Professional Staff Member,

R. Comm, on Education and Labor
3/ These cases were cited by the Supreme Court 
poiiglnss Corp. v. Green, supra, 411 U.S. at 799 
proposi tion.

in McDonncl1- for the same

-12-



EEOC. United States v. H. K. Porter Company, N.D. Ala. 1968,
226 F. Supp. 40; King v. Georgi£L^wer_C°. [295 F. Supp. 943 
(N.D. Ga. 1960)1." §§ 717(c) and 717(d) incorporated this prior
caselaw construing the meaning of § 706.

Fourth, § 706(f)(4), specifically incorporated by §§ 717(c) 
and 717(d), authorizes the district court to appoint a special 
master if the court has not "scheduled the case for trial within one 
hundred and twenty-five days after issue has been joined" (emphasis 
added) in order to expedite Title VII adjudications. § 706 (f) (4) 
also speaks throughout of the duty of district courts "to hear_and 
Hm-nrmvine the case" (emphasis added). Moreover, § 706 (j), also 
specifically incorporated by §§ 717(c) and 717(d), provides that 
any civil action or proceeding before the district court is
"subject to appeal" under 28 U.S.C. §§ 1291, 1292.

Fifth, if Congress had intended something less than a trial do 
novo of the merits, it could readily have done so. Indeed, § 706(b) 
provides that the EEOC "shall accord substantial weight to final

4/ The Section-By-Section Analysis of H.R. 1746, The Equal 4/ The 6ecri *„nitv Act of 1972 explaining the major pro- Employment Opportunity Act ui ^ referencevisions of the 1972 Act, as reported from the Conferenc
Committee, specifically states:

In any area where the new law does not 
address itself, or in any areas where a 
specific contrary intention is not indicated, 
it was assumed that the present caselaw as 
developed by the courts would continue to 
govern1the applicability and construction of 
Title VII.

. . .-4- tqaa Furthermore, the general ruleLegislative H isto ry  at 1844 F th^ ^  tGrrns Qf a s t a tu t e
has always been that the adop as it existed at the

5 Z  ° W “ rv

etiect R.— e— :— _--•-- to m q ? ^ ;  Hassctt v. Welch,vnr.nl v. Davcnnort, 271 U.S. 33, 3« 12------ ----------
*303 U.S. 303, 314 (1938).

-13-

rr



findings and orders" of state or local deferral agencies under 
state or local fair employment practice laws. Congress thus 
made clear its intention on the face of the statute.

"IT]here is no court that has power to defeat the 
intent of the legislature, when couched in such evident and 
express words as leave no doubt whether it was the intent 
of the legislature, or no." 1 Blackstone's Commentary 91 
cited in Colder v. Bull, 3 Dali. 386 (1798). "Nothing is
better settled than that, in the construction of a law, its 
meaning must first be sought in the language employed. if that 
be plain, it is the duty of the courts to enforce the law as 
written, provided it bo within the constitutional authority 
of the legislative body which passed it." United States v. 
Standard Brewery, 251 U.S. 210, 217 (1920). No question can 
arise that federal employee civil actions to enforce equal 
employment opportunity are unconstitutional; the duty of federal 
courts pursuant to § 717(c) is therefore clear.

-14-



"\ S I  •

I I .

§ 717 OF TITLE VII, AS A MATTER OF 
LEGISLATIVE HISTORY, REQUIRES A TRIAL 
DE NOVO IN CIVIL ACTIONS BROUGHT PURSUANT gro ITS PROVISIONS .5/

The legislative history of § 717 reiterates what is 
clear from the face of the statute, that a trial do novo is 
required. Congress, first, was dissatisfied with the un- 
reviewable operation of the CSC complaint process and, second, 
accorded § 717(c) civil action plaintiffs the same right to 
invoke the jurisdiction of the federal courts as § 706

t
plaintiffs fo enforce equal employment opportunity.

Dissatisfaction With Administrative Remedies

The unanimous opinion of the Supreme Court in Morton v . 
Maneari, 41 L.Ed. 2d 290, 298 (1974) , surveying the legisla­
tive history of § 717, stated:

5/ H.R. 1746, reported out of the House Committee on Educa­tion and Labor gave the EEOC administrative jurisdiction over federal employees, § 717(b), and permitted an aggrieved 
employee to file a civil action within 30 days after final 
EEOC action, § 717(c), Legislative History at 27-28. The 
House replacement, H.R. 9247, omitted the coverage of federal employees, Legislative History at 326-32. S.21315 which tracked the provisions of H.R. 1746 was sponsored by Senator 
Williams in the Senate Committee on Labor and Public Welfare, 
Legislative History at 185-87. However, the Senate Committee 
unanimously reported out a version of S.2515 which substituted 
CSC administrative jurisdiction over federal employees, § 717(b), 
and permitted a civil action under the conditions of the present law, § 717(c), Legislative History at 407-08. The terms 
of § 717(c) were suggested by Clarence Mitchell of the NAACP and authored by Senator Cranston and Senator Dominick within the 
Senate Committee, Legislative History at 493-94, 695. The Senate Committee version of § 717(c) passed the Senate without change, Legislative History at 1788. At the conference, the House 
receded and the Senate version was accepted, Legislative History at 1819. .

-15-



o  *

The 1964 Act did not specifically outlaw employment discrimination by the federal govern 
ment. 21/ Yet the mechanism for enforc inq long-outstanding Executive Orders for bidding government discrimination had prove 
ineffective for the most pert. 22/ ™ °rc,cr toremedy this, Congress, by the 1972 Act. amended the 1964 Act and proscribed discrim­ination in most areas of federal government, 
in general, it may be said that the sub stantive anti-discrimination law embraced in 
Title VII was carried over and applied to the 
Federal Government. As stated in the House 
Report.

"To correct this entrenched discrimination 
in the Federal service, it is necessary to insure thq effective application of uniiorm, 
fair and strongly enforced policies. The present law and the proposed statute do not. permit industry and labor organizations to 
be the judges of their own conduct in the area of employment discrimination. There is 
no reason why government agencies should not 
be treated similarly." II.R. Rep. No. 92-238, 
on H.R. 1746, 92d Cong., 1st Scss. 24 2a (1971)• [Language derived from statements 
of Clarence Mitchell of the NAACP in Hearings 
on H.R. 6228 & II.R. 13517 Before the General 
Subcomm. on Labor of the House Comm, on 
Education and Labor, 91st Cong., 1st &Sess. at 112 (1970); Hearings on S.24u3,Before the Subcomm. on Labor of the SenateCommittee on Labor and Public Welfare, 9ist ..Cong., 1st Sess. at 79 (1969).] (bracketed items added)
21/ The 1964 Act, however, did contain a pro­
viso, expressed it somewhat precatory 
language:

"That it shall be the policy of the United States to insure equal employment opportunities 
for Federal employees without discrimination 
because of race, color, religion, sex or nationa 
origin." 78 Stat. 234.

This statement of policy was reonactod as 5 IJ.s.C. 
§7151, (5 U.S.C.S. §71511, 80 Ktnt. 52 3 (I860), am) the 
1964 Act's proviso was repealed, isl* # at 66 .
22/ "This disproportionatte [sic] distribution of

-16-



minorities and women throughout the Federal 
bureaucracy and their exclusion from hiyher level policy-making and supervisory positions 
indicates the government's failure to pursue its 
policy of equal opportunity.

"A critical defect of the Federal equal em­ployment program has been the failure of the 
complaint process. That process has impeded rather than advanced the goal of the elimination 
of discrimination in Federal employment. 11.R.
Rep. No. 92-238, on H.R. 1746, 92d Cong., 1st 
Sess., 23-24 (1971).

The principal reason for the enactment of § 717, as the Kancari 
opinion indicates, was strong dissatisfaction with the admin­
istrative complaint process created by the CSC under authority

W
of the Executive Orders.

■6/ The complete statement of the House Report was that:
This disproportionatte distribution of minorities 

and women throughout the Federal bureaucracy and 
their exclusion from higher level policy-making and supervisory positions indicates the govern­
ment's failure to pursue its policy of equal oppor 
tunity.
A critical defect of the Federal equal employment 

program has been the failure of the complaint pro cess. That process has impeded rather than advanced 
the goal of the elimination of discrimination in 
Federal employment. The defect, which existed under the old complaint procedure, was not corrected 
by the new complaint process. The new procedure, 
intended to provide for the informal resolution of 
complaints, has, in practice, denied employees adequate opportunity for impartial investigation 
and resolution of complaints.
Under the revised procedure, effective July 1,

1969, the agency is still responsible for investigat­ing and judging itself. Although the procedure pro­
vides for the appointment of a hearing examiner from an outside agency, the examiner docs not have the authority to conduct an independent investiga­tion. Further, the conclusions and findings of the 
examiner are in the nature of recommendations to 
the agency head who makes the final agency determina­tion as to whether discrimination exists. Although

-17-



the complaint procedure provides.for an appeal 
to the Board of Appeals and Review in the Civil Service Commission, the record shows that the 
Board rarely reverses the agency decision.

The system which permits the Civil Service Com­mission to sit in judgment over its own practices and procedures which themselves may raise questions 
of systemic discrimination, creates a built-in 
conflict-of-interest.
Testimony reflected a general lack of confidence 

in the effectiveness of the complaint procedure on 
the part of Federal employees. Complainants were skeptical of the Civil Service Commission's record 
in obtaining just resolutions of complaints and 
adequate remedies. This has discouraged persons 
from filing complaints with the Commission for fear that it will only result in antagonizing their 
supervisors and impairing any hope of future advance 
ment.

Aside from the inherent structural defects the 
Civil Service Commission has been plagued by a general lack of expertise in recognizing and isola- ing the various forms of discrimination which exist 
in the system. The revised directives of Federal 
agencies which the Civil Service Commission has 
issued are inadequate to meet the challenge of eliminating systemic discrimination. The Civil Service Commission seems to assume that employment 
discrimination is primarily a problem of malicious 
intent on the part of individuals. It apparently 
has not recognized that the general rules and pro­
cedures it has promulgated may actually operate to the disadvantage of minorities and women in systemic 
fashion. All too frequently policies established 
at the policy level of the Civil Service Commission do not penetrate to lower administrative levels.The result is little or no action in areas where unlawful practices are most pronounced. Civil Service selection and promotion requirements are 
replete with artificial selection and promotion re­quirements that place a premium on "paper" credentials 
which frequently prove of questionable value as a

6/ (Continued)

-18-



f?/ (Continued)
means of predicting actual job performance.^ The problem is further aggravated by the agency's use 
of general ability tests which are not aimed at any direct relationship to specific jobs. The inevitable consequence of this as demonstrated by 
similar practices in the private sector, and, 
found unlawful by the Supreme Court, is that 
classes of persons who are culturally or educa­tionally disadvantaged are subjected to a heavier 
burden in seeking employment.

To correct this entrenched discrimination in the 
Federal service, it is necessary to insure the effective application of uniform, fair and strongly 
enforced policies. The present law and the proposed 
statute do not permit industry and labor organiza­tions to be the judges of their own conduct in the area of employment discrimination. There is no reason why government agencies should not be treated 
similarly. Indeed, the government itself should set the example by permitting its conduct to be reviewed 
by an impartial tribunal.
H.R. Rep. No. 92-238, on H.R. 1746, 92d Cong. 1st Sess. at 23-25 (1971); Legislative History at 83-85. 
See generally, id. at 22-26, Legislative History at 
82-85.

Similarly, the Senate Report stated:
One feature of the present equal employment oppor tunity program which deserves special scrutiny by the Civil Service Commission is the complaint process. The procedure under the present system, intended to provide for the informal disposition of complaints, may have denied employees adequate opportunity for 

impartial investigation and resolution of complaints.
Under present procedures, in most cases, each 

agency is still responsible for investigating and judging itself. Although provision is made for the 
appointment of an outside examiner, the examiner does not have the authority to conduct an independent 
investigation, and his conclusions and findings are 
in the nature of recommendations to the agency head 
who makes the final agency determination on whether 
there is in fact, discrimination in that particular

-19-



•6/ (Continued)
case. The only appeal is to the Board of Appeals and Review in the Civil Service Commission.

The testimony Before the Labor Subcommittee re 
fleeted a general lack of confidence in the effec­tiveness of the complaint procedure on the part of 
Federal employees. Complaints have indicated skepticism regarding the Commission's record in obtaining Just resolutions of complaints and adequate 
remedies. This has, in turn, discouraged persons from filing complaints with the Commission for fear 
that doing so will only result in antagonizing their supervisors and impairing any future hope of advance­
ment. The new authority given to the Civil Service 
Commission in the bill is intended to enable the 
Commission to reconsider its entire complaint structure and the relationships between the employee, 
agency and Commission in these cases.
Another task for the Civil Service Commission is 

to develop more expertise in recognizing and isolat­ing the various forms of discrimination which exist 
in the system it administers. The Commission should be especially careful to ensure that its directives 
issued to .Federal agencies address themselves to the various forms of systemic discrimination in the system. The Commission should not assume that employ­
ment discrimination in the Federal Government is solely a matter of malicious intent on the part of individuals. It apparently has not fully recognized 
that the general rules and procedures that it has promulgated may in themselves constitute systemic 
barriers to minorities and women. Civil Service selection and promotion techniques and requirements 
are replete with artificial requirements that place a premium on "paper" credentials. Similar require­
ments in the private sectors of business have often 
proven of questionable value in predicting job per­
formance and have often resulted in perpetuating existing patterns of discrimination (sec e-q• Griggs 
v. Duke Rower Co., supra n.1). The inevitable con­sequence of this kind of technique in Federal employ­
ment, as it has been in the private sector, is that classes of persons who are socio-economically or 
educationally disadvantaged suffer a very heavy burden in trying to meet such artificial qualifica­
tions .

-20-

t



6/ (Continued)
It is in these and other areas where discrimina­

tion is institutional, rather than merely a matter 
of bad faith, that corrective measures appear to 
be urgently required. For example, the Committee 
expects the Civil Service Commission to undertake a thorough re-examination of its entire testing and qualification program to ensure that the standards 
enunciated in the Griggs case are fully met.
Senate Rep. No. 92-415, on S.2515, 92d Cong., 1st Scss. at 14-15 (1971); Legislative History at 423-25. See generally, id. at 12-17; Legislative History at 
421-26.

See, Hearing On S.2453 Before The Subcomm. On Labor Of The 
Senate Comm, on Labor and Public Welfare; 91st Cong., 1st Sess. 
at 35-36 (comments of Senator Cranston); 61 (comments of EEOC member, Clifford L. Alexander); 76 (comments of Joseph L. Rauh); 
77-80, 02-04 (testimony of Clarence Mitchell, NAACP); 170-91 (testimony of Julius W. Hobson) (1969) ; Hearings on II.R. 6228 
& H.R. 13517 Before the General Subcomm. On Labor of the House 
Comm, on Education and Labor, 91st Cong., 1st & 2d Sess. at 110-12 (statement of Clarence Mitchell, NAACP); 144-66 (testimony 
of Panel of Federal Employees); 1963-65, 190-205, 238-40 (comments of Chairnuin Hawkins) ; 247 (comments of Rep. Erlenborn) ; 
248 (comments of Rep.Mink)(1970); Hearings on H.R. 1746 Before 
the General Subcomm. on Labor of the -House Comm, on Education 
and Labor, 92d Cong., 1st Sess. at 126-28 (comments of Rep.Mink); 129-30 (comments of Rep. Reid); 153-59 (testimony of Clarence Mitchell, NAACP); 363-64 (comments of Chairman Hawkins); 
387-90 (statement of Clarence Mitchell, NAACP); 390-421 (testimony of Warren Anderson, Black Committee) (1971) ; Hearings 
on S.2515, S .2617 & H.R. 1746 Before the Subcomm. on Labor of the Senate Comm, on Labor and Public Welfare, 92d Cong. 1st Sess. at 198 (testimony of Hon. Rev. Theodore Hesburgh, Chair­
man, U.S. Comm, on Civil Rights), 201-08 (testimony of Hon.
Walter E. Fauntroy, District of Columbia Rep.); 208-26 (state­
ment and testimony of Clarence Mitchell, NAACP); 275-80 (testimony of Daisy B. Fields, Federally Employed Women, Inc.), 
458-68 (statement of Julius W. Hobson) (3.971) ; Note, Racial 
Discrimination in the Federal Civil Service, 38 Geo. Wash. L.Rev. 265 (1969) (influential law review article cited throughout 
hearings) .

For defense of the CSC complaint process, see Hearings On 
S.2453 Before the Subcomm. on Labor of the Senate Comm, on Labor and Public Welfare, 91st Cong. 1st Sess. 127-46 (testimony of Robert E. Hampton, Chairman, CSC) ; Hearings on II.R. b238 & 
H.R. 13517 Before the General Subcomm. on Labor of the House Comm, on Education and Labor, 91st Cong., 1st & 2d Sess. at 191- 
240 (testimony of Irving Kator, CSC)(1970); Hearings on H.R.
1746 Before the General Subcomm. on Labor of the House Comm.

-21-



Both the Senate and House Reports agreed on the need to 
provide for judicial scrutiny of agency disposrtion of employ­
ment discrimination claims no matter which federal agency —
CSC or the EEOC -  ended up presiding over the administrative 
complaint procesi^The new authority given to the Civil Service 
Commission in the bill is intended to enable the Commission 
to reconsider its entire complaint structure and the relation­
ships between the employee, agency and commission in these 
cases." Sen. Rep.. SHESa. «  M* Legislative History at 423. 
The Senate Report, which allowed the CSC to supervise the
complaint process, stated:

An important adjunct to the strengthened^Civil Service Commission responsibilities is 
tie statutory provision of a private rrght 
of action in the courts by Federal employees 
who are not satisfied with the agency or 
Commission decision.

6/ (Continued)
on Education and Labor, 92d Cong., ^^Sess. (ig71). Hearings
(statement and testimony 1746 Before" the Subcomm. on Labor ofon S.2515, S .2617 & H.R. 174b Bctore 92d Cong., 1st
the Senate Comm, on Labor and Publ irving Kator (1971).Sess. at 291-344 (testimony & statement o£ irvinj

7/ The debate in Congress bot^eJ"d^ai°e^ployeeshto the EEOC 
administrative jurisdiction ov<? w,th the CSC did not involve and those who sought to leave it wr h the q£ fche csc
any disagreement about the un. ^ both sides that the
complaint process. There was ^ ^ t  LpSrtSnitJ in the federal CSC had not enforced equal cmpl y Pl 2515. 92d Cong.,
service. C ^ .  Leg°blatltf kiTJ'U  421-26. ViRth.1st Sess. at ^-17 (1971N “ 9 92d c , lst Sess. at
H.R. Rep- No. 92-238, on H **j 82-86. Sec citations to22-28 (1971); Legislative History at 82 8b. £ th£J issue
specific parts of hearings, g.u p p , • • _ could do a better
was practical, whether the over ur w §"717 strictures. See, 
gob than CSC s2617 and H.R. 1746 Before the 
f ^ J T ^ T a b ™  of^the'Senate Co-, on Labor and Public

-22-



The testimony of the Civil Service Com 
mission notwithstanding, the committee found 
that an aggrieved Federal employee does not 
have access to the courts. In many cases, 
the employee must overcome a U.S. Government 
defense of sovereign immunity or failure to 
exhaust administrative remedies with no 
certainty as to the steps required to exhaust 
such remedies. Moreover, the remedial authority 
of the Commission and the courts has also been 
in doubt. The provisions adopted by the com- 
mittcc will enable the Commission to grant full 
relief to aggrieved employees, or applicants, 
including back pay and immediate advancement as 
appropriate. Aggrieved employees or applicants 
will also have the full rights available m  the 
courts as are granted to individuals in the 
private sector under Title VII.
Senate Rep. No. 920415, on S.2515, 92d Cong.,
1st Sess. at 16-17 (1971); Legislative History
at 42 5.

The House Report, which allowed the EEOC to supervise the
complaint process, concurred:

Despite the series of executive and administrative 
directives- on equal employment opportunity, Federal 
employees, unlike those in the private sector to whom Title VII is applicable, face legal obstacles 
in obtaining meaningful remedies. There is serious doubt that court review is available to the aggrieve 
Federal employee. H.R. Rep. No. 92-938, on H.R.1746, 92d Cong.. 1st Sess. at 25 (1971); Legislative
History at 85.

Senator Dominick, who with Senator Cranston, authored § 717(c), 
set forth his view of the critical enforcement role the courts

TJ (Continued)
Welfare, 92d Cong., 1st Sess. at 61-62
William II. Brown III, Chairman, EEOC), 198 Theodore Hcsburgh, Chairman, U.S. Comm. On 
295 (comments of Irving Kator, CSC)(1971), Before the General Subcoram. on Labor of the

(statement of (comments of Hon. Rev. 
Civil Rights); 292-93, 
Hearings on H.R. 1/46 House Comm, on Educa­

tion and Labor. 92d Cong.. 1st Sess. at 113-30 (testimony of Harold Glickstein. Staff Director, U.S. Comm. On Civil Rights).

-23-



should play in exorcising their 717(c) jurisdiction.
It is overly simplistic to arguo as many have, 

that protection of employees rights can best bo 
achieved by vesting the present pro-employee (EEO] 
Commission with as much enforcement power as 
possible. The vicissitudes of Presidcntially appointed Boards is legend. The administrative Board possessing enforcement powers most similar 
to the cease and desist powers advocated by the 
majority, the National Labor Relations Board, 
provides the best example of this. Critics 
charge that the NLRB, in reacting to political winds rather than stare decisis, have fluctuated from pro-management decisions during the Eisenhower Administration to pro-labor positions during the Johnson and Kennedy Administration. Determination 
of employment civil rights deserves and requires 
non-partisan judgment. This judgment is best 
afforded by Federal court judges who, shielded 
from political influence by life tenure, arc more likely to withstand political pressures and render their decisions in a climate -tempered by judicial reflection and supported by historical judicial 
independence. i
Likewise simplistic reasoning has classified 

proponents of court enforcement as being pro­
respondent or anti — employees 1 rights. Nothing 
could be less correct. Both procedures seek to achieve the same end— the fair redress of employees-' grievances. Althoug I opposed the cease and desist provisions, I voted to report S.251d , as amended, 
out of committee favorably as I was most encouraged by the potential relief its compromise amendments offered federal employees. As the report indicates, 
these employees are the most frustrated in achieving equal employment opportunity. I authored an amend­
ment with Senator Cranston which was adopted that provided the approximately 2.6 million civil service 
and postal workers with court redress of their employ­ment discrimination grievances. The amendment creates 
machinery suggested by Clarence Mitchell, Director, 
Washington Bureau, NAACP, whereby an aggrieved civil 
service or postal employee has the option after ex­hausting his agency remedies, of either instituting 
a civil suit in Federal district court or continuing 
through the Civil Service Board of Appeals and Re­
views to district court, if necessary.
Senate Rep. No. 92-415, on S.2515. 92d Cong., 1st Sess. at 85-86 (1971); Legislative History at 493-94.

-24-



Senator Dominick’s similar position on judicial enforcement 
for private employees, JlcI- at 86-87, Legislative History at 
494-99  ̂ as utilizing special assets of both the executive and 
judicial branches and providing an expeditious and final 
remedy, also eventually prevailed.

Floor debate on § 717(c) was minimal. As Senator Williams
puts it:

Another significant part of the bill and one 
that has not had very much debate because it was so clearly accepted at the committee level, con­cerns our Federal Government employees. The 
requirement of equal employment opportunity i.̂ 
extended by statute to these employees, and for the first time a clear remedy is provided enabling 
them to pursue' their claims in the district courts 
following a Civil Service Commission or agency 
hearing. Legislative History at 1768.

Proponents of § 717(c) set forth its requirements without
8/encountering any dissent.

The Congressional reports and floor debate reflect the 
consensus of the framers of §717(c) evinced during hearings on 
the bills that:

. . . perhaps this a matter f1.e., the intransigence
of federal agencies] that should be resolved in the 
courts. I don't think the Executive can take pri mary responsibility for being its own watchdog. 1 
think that is part of the reason for having the 
courts. It equally is a better procedure. I can visualize moments where you would have a President 
who would be very strong in the area and moments where this might not be the case, or where you

8/ Legislative history at 1722-25 (comments of Sen. Cranston), 
1725-27 (comments of Sen. Williams); 1727-30 (Analysis of Federal 
Employment submitted by Sen. Williams); 1744-52 (comments of 
Sen. Cranston); 1752-04 (submissions of Sen. Cranston); 177 (section-by-section analysis) 269-72 (comments of Mr. Fauntroy); 
288-92 (comments of Rep. Badillo).

-25-



would have White House staffers who might look^ more South than North, and in any event. I don t
think you are going to be upheld.★ ★ ★
What I am saying is that if we are really going to change the structure of the Government and open 

i.t up in certain areas where it should be opened 
then we are going to have to have remedies that reach beyond the Executive’s capacity not to act. 
Hearings on H.R. 6228 & H.R. 13517 Before the General Subcomra. on Labor of the House Comm, on Education and Labor, 91st Cong., 1st & 2d Sess. 
at 237-38 (1970) (comments of Rep. Reid).

Civil rights activists and representatives of black federal
employees specifically took issue with the CSC at hearings that
aggrieved federal employees could invoke judicial review after
exhausting administrative remedies under preexisting law.
“Government employees must be given access to the Federal courts
so that discriminatory action by the Government will stand no
longer as a wrong without a remedy behind the veil of sovereign
immunity." Hearings on H.R. 1746 Before the General Subcomm.
on Labor of the House Comm, on Education and Labor, 92d Cong.,
1st Sess. at 391-92 (testimony of Warren Anderson, Black
Committee). An example of this conflict between civil rights
activists and the CSC, resolved eventually by the Committee
and the full Congress in favor of the civil rights activists, is
the following colloguy between Clarence Mitchell of the NAAC1
and Irving Kator of the CSC:

Mr. MITCHELL. Would you indulge me just to ask if you will ask the Civil Service Commission 
while they are here whether there is any way that a complainant who is unable to get redress before 
the Board of Appeals and Review can get redress by 
going into the Federal Courts?

-26-



The CHAIRMAN. I am glad you have asked me to 
ask the question; and without rephrasing it, 1 
think you heard it, Mr. Kator.

Mr. KATOR. Yes, Mr. Chairman.Mr. Mitchell, an employee dissatisfied with a 
decision of the Commissions Board of Appeals and 
Review may get into court. I think we cited in our written statement a recent case in the Colorado 
district, which made this very clear, that permits the employee to move from the Commission's Board of Appeals and Review directly into the courts for 
review of that procedure.
The CHAIRMAN. Does that seem responsive, Mr. 

Mitchell?
Mr. MITCHELL. Yes; but it is not in line with 

our experience.As I pointed out in my testimony yesterday, we have filed a complaint against the Commission at 
HUD here in the U.S. District Court for the District 
of Columbia, and we have had to rely on at least four different statutes plus the fifth amendment, 
and it is by no means clear at this point that the 
courts will uphold that principle on which we are 
relying.Now, if we ultimately win, we would, of course, 
take at least about 4 years to do it according to 
the Supreme Court. But it seems to me by doing 
what the bill proposes to do, the whole thing would be simplified and we would have a clear 
channel into the courts under the statute as pro­
posed in this bill.
Hearings on S.2515, S.2617 & H.R. 1746 Before the
Subcomm. on Labor of the Senate Comm, on Labor
and Public Welfare, 92d Cong., 1st Sess. at 296 (1971)

9/
The position of the CSC, specifically rejected by the 

Congressional committees, was that there was no need for an

cj/ Hearings on H.R. 6228 & H.R. 13517 Before the General .mb 
comm, on Labor of the House Comm, on Education and Labor, 91st 
Cong., 1st & 2d Sess. at 216 (testimony of Mr. Kator)(1970); 
Hearings on H.R. 1746 Before the General Subcomm. on Labor of the House Comm, on Education and Law, 92d Cong., 1st Sess. at 320, 322 (testimony of Mr. Kator); 305-86 (CSC statement)(1971); 
Hearings on S.2515, S.2617 & H.R. 1746 Bcfre the Subcomm. on Labor of the Senate Comm, on Labor and Public Welfare, 92d Cong., 1st Sess. 301 (statement of Mr. Kator), 310 (CSC statement) (U71) .

-27-



express statutory right of action. In light of this legisla­
tive history, the CSC complaint process upon which Congress delib 
erately imposed a system of judicial safeguards, should be 
subjected to the closest scrutiny and little deference given to 
findings and decisions of no discrimination.

Intent To Accord Federal Employees The Same Enforcement 
Rights As Private Employees-------- _ -------------- ------

A second point on which there was consensus in the legis­
lative history, as reflected in language incorporating § 706 
provisions, was that the right of action accorded federal 
employees by § 717(c) should be the same right of action pre­
viously conferred upon private employees by § 706, i . > trial 
de novo . See Robinson v. Lorrillard Corp., supra ; Rev e r I y.. v 
Lone Star Lead Construction Corp. , supra; Flowers v. Loca3r _6 
Laborers International Union of North America, supra; Poketo 
v. United States Steel Corp.; Smith v. Universal^ScrviccSj— 1 ~̂— 
supra. The Senate Report stated that, "Aggrieved employees 
or applicants will also have the full rights available in the 
courts as are granted to individuals in private sector under 
Title VII." (emphasis added) Sen. Rep. No. 92-415, on S.2j15, 
92d Cong., 1st Sess. at 16 (1971); Legislative History at 425. 
The House Report said no less: " . . .  there can exist no
justification for anything but a vigorous effort to accord 
Federal employees the same rights and impartial treatment which 
the law seeks to afford employees in the private sector, 
(emphasis added) H.R. Rep. No. 92-238, on H.R. 1746, 92d Cong.

-28-

?



1st Scss. at 23 (1971); Legislative History at 83. As the 
Conference Report, speaking of federal employees, put it "an 
aggrieved party could bring a civil action under the provisions 
of Section 706," Conference Rep. No. 92-681, on H.R. 1746.
92d Cong., 2d Sess. at 21 (1971); Legislative History at 1819. 

Floor debate is to the same effect. Senator Cranston,
one of the authors of § 717(c), stated:

As with other cases brought under Title VII 
of the Civil Rights Act of 1964, Federal District Court review would not be based on 
the agency and/or CSC record and would be a 
trial de novo . (emphasis added). 119 Cong.Rec. § 1219 (daily ed. January 23, 1973) (cor 
recting error made in 118 Cong. Rec. § 228/, 
Legislative History at 1744.)10/

10/ 119 Cong. Rec. § 1219 states:
Unfortunately, Mr. President, the word "not" was mi solaced . . . the bound volume of the Congres­
sional Record . . .  will set forth this sentence 
in the correct manner as follows :

As with other cases brought under Title 
VII of the Civil Rights Act of 1964 Federal District Court review would not 
be based on the agency and/or CSC record 
and would be a trial de novo.

I hope that this correction will . • • avoid anymisplaced reliance upon the incorrect version as 
originally printed in the Congressional Record of 
February 22, 1972.

As Senator Cranston's comment stood initially, with the transposed to the second clause, it would have misrepresented
existing law that private employees were e n t R o b i n - o n  v de novo after EEOC proceedings under § 706. See BS— ac~" 0n 
Lorri Hard Corn., sunran Bover \x_JLz. c -Â -a-r L - a-~—— - ~
Corn7 ~sudta; lH<^e r s . c a  1 _6_of'Itorth'to//  ica, supra; Fekete v.._Unxted States otccl. Co.rl-' 
Smith v

/ u  11 v.. i  t —  - — ■— .— . i. ■ — —     Universal Services, Inc., supia.

-29-

r



Senator Dominick, the other author of § 717(c) said the same:
. it strikes me that one of the first things 

we have to do is at least to put employees hold­
ing their jobs, be they government or private employees, on the same place so that they have 
the same rights, so that they have the same 
opportunities, and so that they have the equality within their jobs to make sure that they are not being discriminated against and 
have the enforcement, investigatory procedure 
carried out the same way. (emphasis added) ll8 
Cong. Rec. § 176 (daily ed. January 20, 1972), 
Legislative History at 680-01.

Senator Dominick later reiterated his point:
It seems to me that where we are dealing with job discrimination, it makes no difference what type 
of job you have, you should be entitled to - same remedies anyone else in that situation h , 
and~ thi s is a right to have the federal court determine whether or not you have been discriminated 
against (emphasis added) 118 Cong. Rec. § 17/ tdaily ed. Feb. 15, 1972); Legislative History at la27

Senator Williams, sponsor and floor manager of S.2515. said no

les
Finally, written expressly into the law is aprovision enabling an aggrieved Federal employee 

to file an action in U.S. District Court for a 
review of the administrative proceeding record 
after a final order by his agency or by the Civil 
Service Commission, if he is dissatisfied with 
that decision. Previously, there have been un 
realistically high barriers which prevented or 
discouraged a Federal employe from taking a case 
to court. This will no longer be the case.
There is no reason why a Federal employee should 
not have the same private right of action enjoy 
by individuals in the private sector, and I 
believe that the committee has acted wisely i 
this regard (emphasis added).
118 Cong. Rec. § (daily ed.
Legislative History at 172/. 11_/

1972) ;

11/ Several district courts have interpr 
"review of the administrative proceeding 
standing alone, as limiting the scope of

eted Senator Williams 
record" language, 
judicial review, e

-30-



Sec also Legislative History at 681-82, 835, 1441, 1482 (comments 
of Sen. Dominick); 1723 (comments of Sen. Cranston).

In committee hearings, witness after witness spoke of the 
need to assure federal employees of the § 706 right to seek
redress in the courts as private and state or local government

12/employees. ~ The reason for requiring a § 706 trial de novo 
is apparent. As Clarence Mitchell of the NAACP, who is 
credited with suggesting the § 717(c) right of action scheme, 
stated:

Under (the CSC complaint] system each agency investigates itself with the result that if 
by some miracle there is a finding of dis­crimination, its implementation is delayed 
by various obstructionists. Needless to say, such findings of discrimination are few and 
far between. In fairness, it must be said 
that some members of the Civil Service Com­mission itself and a few of the top officers of the Commission have made valiant attempts to establish workable fair employment policies. 
Unfortunately, the lower levels of bureaucracy in the commission itself and in the Government agencies usually nullify these policies by using cumbersome procedures that are weighted in favor 
of those who discriminate and by tolerating 
supervisory personnel with known records of 
discrimination.
Hearings on S.2453 Before the Subcomm. on Labor 
of the Senate Comm, on Labor and Public Welfare,

11/ (Continued)
Hacklev v. Johnson, 360 F. Supp. 1247, 1252 (D.D.C. 1973).overlooks the overwhelming evidence in favor of trial de novo as well as the meaning of the statement taken as whole. Senator 
Williams' statement that an employee could file an action only "after a final order by his agency or the Civil Service Comm, 
is of course also inaccurate.
12/ See citation to specific parts of the hearings, supra, n . 6.



91st Cong-, 1st Sess- at 79 (1969); Hearings on H.R. 
6228 & H.R- 13517 Before the General Subconun. on 
Labor of the House Conun. on Education and Lcibor,
91st Cong., 1st & 2d Sess. at 112 (1970).

Only the CSC characterized judicial scrutiny as limited to a
limited review of the administrative procedure as in CSC adverse 

13/action cases. These comments, however, were pitched to the 
degree of judicial scrutiny the CSC claimed existed under pre­
existing law. The Committee reports of course rejected the 
claim of a preexisting right of action for federal employees 
that obviated the need for § 717(c). Moreover, § 717(c) and 
§ 717(d) specifically incorporate the § 706 civil action pro­
visions with broad scope of judicial scrutiny espoused by 
civil rights activitists, thus rejecting limited review of 
the administrative record in adverse action litigation that 
the CSC propounded. A clear choice was made. §717(c), as 
Senator Dominick put it, provides "more remedies for those 
who are discriminated against in Federal employment than have 
ever been available to them before." 118 Cong. Rcc. §
(daily ed. 1972); Legislative History at 1526. Only a
trial de novo accomplishes this; review of the administrative 
record would give the complainant nothing he didn't have before. 
This Court cannot and should not permit the undoing of what

Congress so clearly intended to do and did in 1972.

12/ See Hearings on H.R. 1746 Before the General Subcomm. on Labor of the House Comm, on Education and Labor, 92 Cong.,
1st Sess. 385-86 (1971); Hearings on S.2515, S.2617 A H.R.
1746 Before the Subcomm. on Labor of the Senate Comm, on Labor 
and Public Welfare, 92d Cong., 1st Sess. at 296 (1971) .

-32-



Ill.

THE STATUTORY PURPOSE OF § 7 3-7 
REQUIRES A TRIAL DE NOVO IN WHICH 
LITTLE WEIGHT SHOULD BE GIVEN THE 
RECORD DEVELOPED DURING THE CSC DISORTMINATION COMPLAINT PROCEog_-_

as a
The lower court should have given little evidentiary weight to

prior adverse agency disposition of the discrimination complaint 
natter of law in light of the statutory purpose of § 717 
to completely eliminate racial discrimination in federal employ­
ment. § 717(a) states that, "All personnel actions affecting 
employees or applicants for employment . . - shall be made free
from any discrimination based on race, color, religion, sex, or 
national origin." (emphasis added). Judicial precedent and 
clear expression of statutory purpose require that unless prior 
agency dispositions of discrimination claims meet a rigorous 
standard they are not to be accorded substantial evidentiary 
weight in § 717 civil actions in the federal courts. The 
present revised CSC Equal Opportunity Regulations, 5 C.F.R.
Part 713, on their face and as administered, are simply not 
designed to accord federal employees a substitute for the 
independent judicial determination of facts concerning claims of 
racial discrimination and application of controlling constitutional 
and statutory principles of law of a trial dc novo.

Judicial precedent and 5 717 Statutory  ̂
In two recent unanimous decisions 

set forth the factors to be considered

purpose
the Supreme Court ha 

w3ien deciding the

-33-



evidentiary weight to be given prior non-judicial disposition
of Title VII claims in trials de novo. In McDonnell Douglas v .
Green, 411 U.S. 792, 798-99 (1973), the Court had before it an
EEOC finding of no reasonable cause.

. . . the courts of appeal have held that, in
view of the large volume of complaints before 
the Commission and the nonadversary character of 
many of its proceedings. court actions under 
Title VII are de novo proceedings and . . .  a 
Commission 'no reasonable cause' finding does not 
bar a lawsuit in the case.' Robinson v. Lorillard 
Corp. 444 F.2d 791, 800 (CA4 1971); Beverly v. Lone 
Star Lead Construction Corp., 437 F.2d 1136 (CAS 1971); Flowers v. Local 6, Laborers inter­
national Union of North America, 431 F.2d 205 
(CA7 1970); Fekete v. U.S. Steel Corp., 424 F.2d 
331 (CAS 1970).

This Circuit, in Smith v. Universal Services^_ZUfL* *
454 F .2d 154 (5th Cir. 1972), has elaborated upon the Supreme Court 
reasoning that the record of nonadversary administrative proceeding

- 14/is necessarily suspect. In Alexander v. Gardncr-Denvcr Co.,

14/ It is not to be denied that under Title VII, the action of the EEOC is not agency action of a quasi-judicia1 nature which determines the rights 
of the parties subject only to the possibility that 
the reviewing courts might conclude that the EEOC's actions are arbitrary, capricious or an abuse of 
discretion. Instead, the civil litigation at the 
district court level clearly takes on the character 
of a trial de novo, completely separate from the 
actions of the EEOC. United States v. H.K. Porter 
Company, N.D. Ala. 1968, 296 F. Supp. 40; King v. Georgia Power Co., supra. It is thus clear that the 
report is in no sense binding on the district court 
and is to be given no more weight than any other 
testimony given at trial.



39 L. Ed. 2d 147 (1974), the Court similarly had before it 
a prior arbitral decision of no discrimination.

14/ (Continued)I
This is not to say, however, that the 

report is inadmissible. A trial de novo 
is not to be considered a trial in a vacu­
um. To the contrary, the district court is obligated to hear evidence of whatever nature which tends to throw factual light on 
the controversy and ease its fact-finding 
burden.

The Commission's decision contains 
findings of fact made from accounts by different witnesses, subjective comment 
on the credibility of these witnesses, and reaches the conclusion that there is reasonable 
cause to believe that a violation of the Civil 
Rights Act has occurred. Certainly these are 
determinations that are to be made by the 
district court in a dc novo proceeding. We think, however, that to ignore the manpower 
and resources expended on the EEOC investi­gation and the expertise acquired by its field investigators in the area of discriminatory employment practices would be wasteful and 
unnecessary. [454 F.2d at 157]

in contrast to the expertise of the EEOC in investigating employment discrimination, the CSC was criticized by congress 
for its failure to even perceive the class nature of discnmi 
nation. H.R. Rep. No. 92-238, on H.R. 1746, 92d Cong., 1st Sess. at 24-25 (1971); Legislative History at 84-85; Sen. Rep.
NO. 92-415, on S.2515, 92d Cong., 1st Sess. at 13 (1971); 
Legislative History at 422.

-35-

r



Moreover, the fact-finding process in 
arbitration usually is not equivalent to judicial 
fact-finding. The record of the arbitration proceedings is not as complete? the usual rxilcs of 
evidence do not apply? and rights and procedures 
common to civil trials, such as discovery, compulsory process, cross-examination, and testimony undex oath, 
are often severely limited or unavailable. Sec 
Bernhardt v. Polygraphic Co., 350 U.S. 108, 203,
100 L. Ed. 199, 76 S. Ct. 273 (1956); Wilko v. Swan, 
346 U.S. 427, 435-437, 98 L. Ed. 163, 74 S. Ct. 182 
(1953). . • - indeed, it is the informality ofarbitral procedure that enables it to function as an efficient, inexpensive, and expeditious means for 
di spute resolution. This same characteristic, how­
ever, makes arbitration a less appropriate forum for. 
final resolution of Title VII issues than the federal 
courts. 19/

19/ A further concern is the union's exclusive control "over the manner and extent to which an individual grievance 
is presented. See Vaca v. Sipes, 386 U.S. 171, 17 L. Ed.
2d 842, 87 S. Ct. 903 (1967)? Republic Steel Co. v Maddox 379 U.S. 650, 13 L. Ed. 2d 580, 85 S. Ct. 61 (1965) In arbitration, as in the collective-bargaining
process, the interests of the individual employee may bo subordinated to the collective interests of all employees 
in the bargaining unit. See J. I. C^ eoCo- v• Labor Board 321 U.S. 332, 88 L. Ed. 762, 64 S. Ct. j76 (1914).Moreover, harmony of interest between the union and the individual employee cannot always be presumed, especially  ̂where a claim of racial discrimination is made. See, eg., 
Steele v. Louisville & N. R. Co., 323 U.S. 192 89 L. Ed.
173, 65 S. Ct. 226 (1944); Tunstall v. Brotherhood of 
Locomotive Firemen, 323 U.S. 210, 89 L. Ed. 187,
235 (1944). 39 L. Ed. 2d at 163-64.

Ct.

Clearly, it is 
the effect of 
and decisions 
processes for

incumbent upon this Court to carefully 
the nature of CSC complaint procedures 
of no discrimination. The validity of 
complaints of racial discrimination is

consider 
on CSC findings 
non-judicial 
suspect.

-36-



■ I

[
Moreover, expressions of § 717 statutory purpose yield 

specific reasons why CSC complaint procedures in particular are auqxsct 
and entitled to no presumption of validity. The failure of the 
CSC complaint process to enforce equal employment opportunity (
in federal employment was itself the principal reason for
enactment of § 717, Morton v. Mancari, 41 L. Ed. 2d 290, 298 (1974), j
and by enacting § 717 Congress issued an express mandate, in un-

1
usually strong language, that the complaint process be reformed 
in specific and fundamental ways. The House Report detailed 
"inherent structual defects" in CSC investigation and hearing 
practices that created the need for reform.

4

A critical defect o f  the Federal equal employment propram has 
been the failure of the complaint process. That process has impeded 
rather than advanced the coal of the diminution of discrimination in 
Federal employment. The defect, which existed under the old com­
plaint procedure, was not corrected by the new complaint process. The 
new procedure, intended to provide for the infotmal resolution of 
complaints, lias, in practice, denied employees adequate opportunity 
for impartial investigation und resolution o f  complaints.

Under the revised procedure, effective July 1. 1001), the agency is 
still responsible for investigating and judging itself. Although the 
procedure provides for the appointment of a hearing examiner from 
an outside agenev. the examiner does not have the authority to conduct 
an independent investigation. Further, the conclusions and findings of 
the examiner are in the nature of recommendations to the agency head 
who makes the final agency determination as to whether discrimina­
tion exists. Although the complaint procedure provides for an appeal 
to the Hoard of Appeals and Rev iew in the C ivil Scrv ice Commission, 
the record shows that the Hoard rarely reverses the agency decision.

The system, which permits the Civil Service Commission to sit in 
judgment over its own practices and procedures which themselves may 
raise iftfe't ions of systemic dlserttuimit ion, creates a built-in conflict-
of-interest. .

Testimony reflected a general lack of confidence in the effectiveness 
.-df the complaint procedure on the part of federal employees. ( om- 
piainanfs were skeptical of the Civil Service Commission's record in 
obtaining just resolutions of complaints and adequate remedies. This 
has discouraged persons from filing complaints with the ( otnmission 
for fear that it will only result in antagonizing their supervisors and 
impairing an% hope of future advancement.

*  *  *
/

-37-

r



T o  correct this entrenched discrimination in the Federal service, it 
tc nuroiK'trv to insure the effective application o f  uniform, fa ir  nnd 
strongly enforced policies. The present law and the proposed statute 
do not permit industry and lai>or organizations to Ik: the judges of 
their own conduct in the area o f employment discrimination. There is 
no reason why government agencies should not l>o treated similarly. 
Indeed, t lie government itseI f should set t lie example h\ perm it I mg it s 
conduct to lie reviewed hv an imparl ml trilmual. I treatise the Equal 
Employment Opportunity Commission is the expert agency in the 
field o f employment discrimination and because it is tin independent 
agency removed from the administration of Federal employment, it 
is the most logical place for the enforcement j>ower to be vested.

II.R. Rep. No. 92-238, on II.R. 1746, 92d Cong., 
1st Sess. at 23-25 (1971); Legislative Historv at 83-85. J

The Senate Report concurred.

One feature o f the present equal employment opportunity program 
which deserves special scrutiny by the Civil Service Commission is the 
complaint ino ess. The procedure under the present systcm.nr.lentVd to 
provide lor the informal disposition of complaints, may have denied 
employees adequate opportunity for impartial investigation and reso­
lution o f  complaints.

Under present pi occdtires, in most cases, each agency is still respon­
sible for investigating end judging itself. Although provision in made 
for the appoint incut of an outside examiner, the examiner d o e s  not 
have. the. authority to conduct, an independent investigation, and his 
conclusions and findings are in the nature o f recommendations to the, 
agency head who makes the final agency determination on whether 
there is, in fact, discriminat ion in that part icular case. The only appeal 
is to the hoard of Appeals and Review in the Civil Service 
Commission.

The testimony before the Labor Subcommit tee reflected a general 
lack o f confidence in the clientivcm ss o f the complaint procedure on 
the part o f Federal employees. Complaints have indicated skepticism 
regarding the Commis-uon's record in obtaining just resolutions of 
complaints and adequate remedies. This has, in turn, discouraged per­
sons from tiling complaints with the Commission for fear that doing 
so will only remit in antagonizing their supervisors and impairing 
any future hope of advancemvnt. The new anthority given to the Civil 
.Service Ci.; io  in'- in t he 1 a! I ■ W n d r d  to enable t Itc Commis-in!i to 
reconsider its entire complaint struct ure and the relationships between 
the employee, agency and Commission in these cases.

Sen. Report No. 92-415, on S.2515, 92d Cong.,
1st Sess. at 14 (1971); Legislative History at 423.

-38-



For materials that more fully indicate why Congress condemned 
the CSC complaint process, see supra, n. 6 .

part 713 Regulations On Their Face
A comparison of present CSC regulations dealing with investiga­

tion and hearing procedures that became effective December 1, 1972
with those effective during Congressional consideration of § 717, 
clearly indicates that no fundamental reform of the complaint proces

15/has been undertaken. As a preliminary matter, § 713.213 prccomplaint 
processing procedures in which an aggrieved person is required 
to consult with an agency EEO counselor before an investigation 
can be initiated remain essentially unchanged, notwithstanding 
that both Congressional reports stated that procedures geared 
to informal resolution of complaints have "impeded rather than 
advanced the goal of the elimination of discrimination in federal 
employment." The injunction that, "The Counselor shall not 
attempt in any way to restrain the aggrieved person from filing 
a complaint" appears to be the only notable change. See App. at 
8a-10a. § 713.215 provisions which permit the agency itself to 
reject a complaint under certain circumstances and cancel a 
complaint for failure to prosecute are not significantly altered, 
see App. at ICa, notwithstanding Congressional criticism of the

15/ Attachment 1 of the Commission's F.P.M. letter No. 713 17 of 
November 3, 1972 to Heads of Departments and independent Establish
ments, indicates precisely the materials added and deleted to the 
former set of regulations. The Attachment is set forth as App. 1.



practice that "each agency is still responsible for investi­
gating and judging itself."

Till! right to file a civil action conferred by § 717(c) is 
merely added onto existing investigative and hearing procedures 
in the CSC regulations, effectively shifting the burden of reform 
onto the shoulders of the few individual complainants willing to 
invoke the jurisdiction of the courts and the judiciary itself.
5 713.216 procedures in which the defendant agency conducts an 
investigation of the complaint have not, been altered in any way, see 
APP. at 11-12, notwithstanding that Congress expressly criticized 
this system which "denied employees adequate opportunity for 
impartial investigation and resolution of complaint." Only the 
requirement that the agency furnish the complainant with a copy 
of the investigative file was omitted and transferred to 
§ 713.217 to make it clear that the requirement is only for the 
purpose of informal adjustment of the complaint.. See App. at'
12. As was the case before, neither the complainant nor the 
hearing examiner has any right of discovery or compulsory process. 
These regulations are clearly not aimed at adversenal fact 
finding as in a court of law, but at developing the kind of 
arbitrator's "record" in Alexander v. Gardner-Denver, nupra, 
where discovery and compulsory process were similarly absent.

The hearing procedures of § 713.218 are altered literally 
in a cosmetic way only. Neither the investigation of the 
complaint by the defendant agency nor the inability of the 
examiner to conduct an independent investigation is changed.

-40-



CSC, however, has changed the formal title of the examiner
throughout § 713.218 from "appeals examiner" to "complaint
examiner." See App. atl3a-15a. Moreover, instead of the
statement in § 713.218(e) that the examiner request the testimony
of any employee whose testimony "he desires to supplement the
information in the investigative file," there is now language
that he may request testimony" he determines is necessary to furnish
information pertinent to the complaint under consideration. Again,
there has been a change of form without concomitant substantive change
in actual practice. Furthermore, § 713.221 provisions that the 
defendant agency shall make the final decision on the complaint 
are unchanged, notwithstanding congressional criticism that 
agencies should not be "the judges of their own conduct in the 
area of employment discrimination." The defendant agency is also 
instructed that disciplinary action against discriminatory officials 
must not be included in the complaint file. See App. at: 18a-10u. 
Finally, § 713.283 makes clear that, "The filing of a civil action 
by an employee or applicant docs not terminate agency processing 
of a complaint or commission processing of an appeal under 
this subpart." Clearly, the complaint process is not intended to 
substitute for judicial process even by its proponents.

The inherent structual features of the CSC complaint process 
that congress intended the CSC to eliminate and replace remain.
One can only conclude that the revised regulations fail even 
to address the problems that troubled Congress so much in 19/2.
Nor docs the present administration of the regulations by the

- 4 1 -

?



agency and the C.SC give discrimination complainants any hope for 
the fair and impartial forum Congress contemplated other than by 
bringing an independent action in the federal district courts 
pursuant to § 717(c). The decision Congress made in 1972 to create 
a right of trial do novo is as valid today as ever.

Administration Of The Regulations *
Flaws that appear on the face of CSC regulations are not 

corrected by enlightened administration. A scrutiny of investi­
gation and hearing procedures as they are supposed to be applied,

!§/i . e., as described in CSC manuals and handbooks, indicates as 
well that courts should give little deference to adverse administra­
tive findings of no discrimination by an agency.

Discrimination was found in 7.4% of the dispositions
"reviewed by the Commission" in FY 1970 and 4.8% of the dispositions

12/"reported" in the first half of FY 1971 before the enactment

10/ U. S. Civil Service Commission, Investigating Complaints of Discrimination In Federal Employment (Rev. October 1971) 
[hereinafter "Investigation Manual"]. u. S. Civil Service 
Commission, Discrimination Complaint Examiner's Handbook (April 1973) [hereinafter "Examiner's Handbook"].
17/ M. Brewer, Behind The Promises: Equal Employment Opportunity
In The Federal Government III-4 - I1I-5 (Public Interest Research 
Group 1972) [hereinafter "Nader Report"] from information supplied by the CSC.

- 4 2 -



of § 717. For FY 1974, di scrimination war. found ln 7'" of
dispositions "on the merits or withdrawals." No improvement
in performance has occurred even though the number of formal
complaints filed after unsuccessful informal resolution by EEO

counselors has steadily increased: FY 1972 = 1.034: FY 1973 =
19/

2,743; FY 1974: 3,435.
Furthermore, the House Report had expressly called attention 

to the fact that, "Although the complaint procedure provide for an 
appeal to the Board of Appeals and Review in the Civil Service 
Commission, the record shows that the Board rarely reverses the 
agency decision of no discrimination. II.R. Rep. No. 92-23B,
„.R. 1746, 92d Cong., 1st Sess. at 24 (1971): Legislative History
at 84. It. was observed in 1972 that:

After the agency head or his designee decides the merits of a complaint lodged against tlio agency 
the complainant's only recourse is to the Board of Appeals and Review. The Bar has reversed u 
agency head's decision on an EEO complaint only 14 
times in the last four years, out of 1,304 appeaica complaints reviewed by the BAR in that period The 
agency head's decisions that their agencies did not discriminate has been upheld by the BAR 98 9 per cci
of the time. Nader Report at III-20 - III - *•

1B/ u S Civil Service Comm., Memorandum on Precomplaint Counseling 
^  Discrimination Complarnt Activity During Frscal Year 1974 
(August 20, 1974). See App. II.
in/ p s dvil Service Comm., Memorandum on Governmentwide Equal 
Employment1 Opportune ty Counseling and Dr scrimrnatr on Ccmplj t ̂  
Activity, Fiscal Year ^72 thru Fiscal^ear ^ cvca!icd fromof racia scrrmi n ̂ ^  ^  „  1974. or a
increase of 65% in two years. See App. III.

an

- 4 3 -



The performance of BAR lias not significantly changed since 
the enactment of the 1972 Amendments. In FY 1974 ̂ 54.9/4 of
all EEO appeals closed out by BAR were affirmances of agency 
decisions of no discrimination, 427 of 778 appeals. 1% of all 
appeals closed out were affirmances of agency decisions of dis­
crimination, 8 of 778 appeals. Only 2.3% of all appeals closed out 
were reversals of agency decisions of no discrimination, 18 of 778. 
Fully 21.9% of EEO appeals closed out were adjudged not within 
purview or untimely by affirmance or reversal, 171 of 778 appeals. 
BAR affirmed agency decisions of all kinds in 76.5% of appeals 
closed out, reversed agency decisions of all kinds in 6.4%, 
remanded to the agency in 10.5% and the appeal was cancelled in 
6.6%. It should also be noted that in FY 1974 the 778 employment 
discrimination appeals were only 22.5% of BAR'S actual workload 
of 3,455 processed appeals and in FY 1973 the 695 discrimination 
appeals were only 17.0% of 4,101 processed appeals. Other appeals
to BAR include adverse action, reduction of force, suitability

19a/
and retirement matters.

The importance of a thorough and impartial investigation 
of the complaint is indicated by the frank admission that:

The hearing is an adjunct to the investigation.
It is not an adversary proceeding but is an ad^TdiTrativo proceeds no designed to provide 
additional evidonee. (original emphasis)
Examiner's Handbook at 5.

Similarly, the Chairman of the CSC has emphatically stated
Before answering your specific questions, it 

may be helpful to set forth some basic facts about 
the complaint procedure. The procedure is one 
the means by which the agency discharge its

of

19n/ Attachment 2 
FY 1974 at pp. 19, 
FY 1973. See App.

of BAR Annual Report To The Commissioners 
12-14. compare statistics for FY' 197 ,
IV.

For

-44-



responsibility under the law and regulations to assure that all its personnel actions are free from 
any discrimination based on race, color, religion, 
sex, or national origin. It is important to stress 
that it is from beginning to end (at least until appeal) basically an investigative process. Thus, 
although the complainant is accorded the right to a 
hearing, the hearing is not adversary but is an extension of the initial investigation into the com­
plaint. The hearing is for the same purpose as the 
initial investigation, that is to develop the facts 
on which a decision of the agency can be made.
Letter from Robert E. Hampton, Chairman, CSC, to 
Arthur F. Sampson, Acting Administrator, GSA, of 
June 1G, 1973. See APE' V -

Nevertheless, the investigation of discrimination complaints 
under present CSC regulations is in the hands of the defendant 
agency. First, the investigator is an agency employee, probably 
has career plans within the agency, and is likely to be junior 
to the supervisory personnel charged with discrimination.
Second, the investigation Manual limits the investigator s 
independence by advising consultation with agency EEO superiors 
and other agency EEO personnel including the counselor who has 
attempted but been unable to informally resolve the complaint 
before, during and after the investigation.

20/

and

After receiving the assignment, the investigator 
should study the complaint and the report of the Equal 
Employment Opportunity Counselor so as to have clearly 
in mind the issues in the complaint. investigation 
Manua1 at 7.

The investigator may on occasion find it appropriate 
to consult with the Director of Equal Employment 
Opportunity, members of that official s staff, the 
Equal Employment Opportunity Officer, or the Equ l 
Employment Opportunity Counselor who counseled the 
complaint. As a matter of courtesy, the investigator

- 4 5 -

r



Third, the investigator is instructed to "identify himself 
to each person interviewed and advise that person that he has 
been assigned the responsibility for investigating the complaint 
of discrimination for the agency's Director of Equal Employment 
Opportunity." Investigation Manual at 23. It should be noted 
that the agency's EEO Director will be involved in the final 
agency disposition of the examiner's recommendation or, indeed, 
render the final disposition himself as the designees of the agency 
head. See Examiner's Handbook at 7. The EEO Director may also 
terminate the investigation before completion. Investigation 
Manual at 19. Fourth, "testimony" taken during the investigation 
is clearly no substitute in probative value for oral testimony in an 
adversarial forum. "In obtaining testimony, the .investigator should 
get all essential information, reduce it to writing, give the 
person being interviewed an opportunity to review the written 
statement and make any necessary corrections or other changes,

20/ (Continued)-- should contact the Equal Employment Opportunity
Office at the outset of the investigation to inform 
him that it is about to begin. investigation Manual
at 4 .
The investigator should feel free to consult the Director of Equal Employment Opportunity or the Equal 
Employment Opportunity Office (or member of their 
staffs) regarding the adequacy of the investigation. 
Investigation Manual at 12.

-46-

I



and should have him swear to, or affirm, the truth of the 

statement." Investigation Manual at 5. Moreover, the in­

vestigator is told that, "When an alleged discriminatory official 

is interviewed, the investigator should describe to the 

official the nature of the complaint and identfy the complainant. 

Id. at 8. This method of obtaining statements by an investigator 

employed by the defendant agency obviously allows maximum room 

for preservation of the status quo. The United States Com­

mission on Civil Rights has recently summarized what is wrong 

with the practice of agency investigation of discrimination 

complaints in terms reminiscent of the 1972 Congressional call 

for reform:

. . . investigations still will be conducted by
individuals from the involved agency. Whether 
agency personnel can be fully impartial and whether the use of such personnel presents an image of fairness to compalinants are serious questions. Private employers are not allowed to 
investigate complaints against themselves, and Congress now has authorized EEOC to investigate employment discrimination complaints against the State and local governments. Self-review often 
has proved to be of limited value. CSC should, therefore, reevaluate this aspect of the complaint 
system. U.S. Commission on Civil Rights, The Federal Civil Rights Enforcement Effort - A 
Reassessment 55 (1973).

-47-



In Alexander v. Gardncr-Denver Co.., suprn, 39 L.Ed.2d 
at 164 n. 19, the Supreme Court similarly criticized "the 
union's exclusive control over the manner and extent to which
an individual grievance is presented."

The examiner, according to the CSC's own Examiner's Handbook 
and Chairman, »  does not conduct an adversary proceeding.
First, notwithstanding what lawyers for the United States have 
argued, it is the position of the CSC itself that, "The hearing 
is an adjunct to the investigation." The complaint before the 
examiner may be remanded to the agency whenever "the ^ c n c ^  

has made a determination that it does not come within the 
purview of the regulations" since "acceptance of complaints 
of discrimination is an agency responsibility, and agencies make 
the determination whether complaints fall within the purview 
of the regulations." (emphasis added) Examiner's Handbook at 17. 
Second, the contest between complainant and agency is far from 
equal. The Handbook makes no provision for^supplying complainants 
with competent counsel or respresentation. See Examiner's
Handbook at 25-26. No provision is made for paying representatives 
or advisors nor is there a provision that representatives employed

21/ The United States Commission on Civil Rights expressly recommended in 1970 that this situation be rectified.
Free legal aid should be provided on request to 

all grade employees who require it. In this con­nection, CSC should take the lead in establishing 
a Govcrnmcntwidc pool of attorneys who are prepared to volunteer their services in discrimination com­
plaint cases or adverse actions involving minority 
group employees. Federal Civil Rights Enforcement 
Effort 3 58 '(1970).

-48-

f



by the agency be paid during the time spent in hearing
preparation. The agency, however, may select a representative
and advisors, who are presumably paid for their services, and in
the normal course of events lawyers are likely to be selected.
Moreover, the agency representative has access to agency records
beyond the investigation file, while the complainant representative
has no independent power of discovery or compulsory process.
Compare Examiner's Handbook at 85-86 with Examiner's Handbook

07—go. "It is undesirable for an EEO Counselor, EEO Officer,
or other EEO official to serve as either party's representative at
a discrimination complaint hearing" lest it "compromise theii
future usefulness in resolving complaints at the activity {sic]
level." Examiner's Handbook at 26. Notwithstanding the lack of
any provision for competent representation, the complainant
or his representative must make judgments that traditionally have
required the expertise of lawyers, including making pre-hearing
stipulations, negotiating admission of witnesses, direct examination
of complainant witnesses, cross-examination of agency witnesses,
and objections to admissibility of evidence. Third, in Griggs., v .
Duke Power Co., 401 U.S. 424 (1971), the Court declared that:

The Act prescribes not only overt discrimination 
but also practices that are fair in form, but discriminatory in operation. The touchstone is 
business necessity. If an employment practice 
what operates to exclude Negroes cannot be shown to be related to job performance, the practice is 
prohibited. 401 U.S. at 431.

-49-



Similarly, the* Court in NcDonnoll Dougln-n Corp. v. Crecn^ supnj.
411 U.S. at 802, stated that after plaintiff has carried his 
burden of proof of showing disparate treatment, the "burden then 
must shift to the employer to arti culate some legi tima_^,_ricm- 
discri.mi.natory reason for the employee's rejection" (emphasis added) . 
m  contrast, the CSC imposes a much less rigorous burden upon the 
agency to justify its disparate treatment of employees and gives 
the examiner, not required to be a lawyer, a standard under which 
he may exercise discretion in an arbitrary and capricious manner.

Where the i*ecord shows disparate treatment, the 
Examiner must then evaluate the evidence and assemble the facts which tend to establish a case^ free from discrimination based on the complainant's 
race, color, religion, sex, or national origin.If a reasonable and unprejudiced mind could not Tnfer from the facts so assembled that the agency 
was free from discrimination in the matter, then the~Kxamincr shoTTld make a finding of discrimination, 
(emphasis added) Examiner's Handbook at b2.

This is emphatically not Title VII law. The Supreme Court obviously
did not intend that any employer against which a prima facie case
of racial discrimination has been demonstrated be given the benefit
of the doubt, and certainly not the executive branch of the

22/federal government itself. Fourth, agency dispositions of 
discrimination complaints are ad hoc dispositions with no require­
ments of stare decisis or consistency, notwithstanding the inherent

22/ An example of how Title VII 
Griggs and Greon arc ignored excerpt from the Appeals Review 
(decided October 4, 1974) at p.

legal standards set forth in a matter of course is the following 
Board decision in Matter of Jones 
2 :

-50-



similarity of fact patterns and leqal 
examiners.

issues that come before

22/ (Continued)
AGENCY DECISION

The final agency decision, issued on March 19, 1974, 
held that the evidence of record did not substantiate 
complainant|s allegation of racial discrimination in regard to his non-selection for promotion to the posi­
tion of Architect, GS-12. However, the agency found 
that the Mobile District, Corps of Engineers had failed 
to implement the agency's affimative Equal Employment Opportunity program; that the complainant had not been provided the opportunity for maximum utilization of his education and training; and that the complainant had been subjected to a climate of racial prejudice 
in the work environment at the Mobile District. The agency also found that complainant's promotional 
opportunities had been adversely affected and that except for his race, he might have progressed under 
the Department's Career Program to the GS-12 level in the Mobile District or elsewhere in the Corps of 
Engineers. It was also the agency decision that com­
plainant was otherwise discriminated figainst in his employment situation. Based on its findings, the 
agency directed that the complainant be given continuing 
priority consideration for available GS—12 vacancies in the Mobile District, Corps of Engineers, for which he 
is qualified, until complainant is selected for promo­tion or until he declines a bona fide offer. See App. Vi.

The Appeals Review Board affirmed the Agency decision of no discrimination. In 1972, Congress had expressly warned that,
. “G Commission should not assume that employment discrimination 
m  the Federal Government is solely a matter of malicious intent on the part of individuals." Sen. Rep. No. 92-415, on S. 2515,
w u C°n9*' 1 Sc^s* at 14 (1971). Legislative History at 423;II.R. Rep. No. 92-238, on H.R. 1746, 92d Cong., 1 Sess. at 24 (1971); Legislative History at 84.

The BAR, the EEO appeals examiners, and the agencies' 
deciding officials treat each discrimination complaint on an aci hoc basis. There has not developed, nor lias 
there been any attempt to develop a systemized body of 
law, rules, criteria, or guidelines for evaluation of 
the merits of a discrimination complaint. Unchanneled discretion is allowed in describing every complaint, 
and administrative rules to prevent arbitrary and

- 5 1 -



in light of the fact that the present CSC complaint 
process falls so far short of congressional purpose, a trial 
de novo will promote proper use of judicial resources to enforce 
Title V I I .  The spectre of the federal district courts laboriously 
duplicating the worh of the CPC complaint process ad infinitum 
hardly does justice to the cooperative relationship between the 
judiciary and the executive branch Congress clearly intended to 
establish. Strict scrutiny by courts in these early days of 
an administrative process, hitherto effectively not subject to 
any gudicial overview, is surely the most significant means to 
assure that federal agencies and the CSC will fulfill equal 
employment opportunity obligations. Once it is clear that 
congress and. the courts will not tolerate discrimination in 
federal employment, the root causes of complaints of discrim­
ination in federal employment will be'attacked.

23/ (Continued)
capricious decisions are non-existent. Decision 
makers in the agencies are not bound by any require­
ment of consistency or uniformity with past 
decisions. . . .

The lack of published EEO complaint decisions 
which include the facts of each particular case, reasoned, articulated conclusions from those facts, 
and comparisons to the facts and conclusions in previous cases make it impossible for a complainant 
to assess his claim in light of prior successful or unsuccessful claims made by others and to argue 
on the basis of prior decisions upon similar facts. 
Nader Report at II-9 - III-10.

What was true in 1972 is true today.

-52-



There is little question that federal employment practices
once found discriminatory in one agency need not be fully
litigated over and over again. The unitary CSC complaint process
is leqally bound to implement judicial rulings in similar cases

24/that arise subsequently. Moreover, Rule 2 3(b) (2), Fed. R. Civ.
p., class actions will even obviate need for individual administra­
tive and judicial processing of the same complaint by similarly 
situated employees. Sec Amendments To Rules Of Civil Procedure,
39 F.R.D. 69, 102 (1966); Qatis v. Crown Zellerbach Corp., 398 
F.2d 496, 498 (5th Cir. 1960). Thus, trials de novo allow the 
court to assume its proper role in the effective enforcement of 
Title VII guarantees; otherwise federal employees will continue to 
be denied legal rights in case after case.

24/ The CSC publicly professes no less .*
The Commission is well aware of the implications 

of this provision of the act, but we do not foresee it as sending a steady stream of grievants to the courts. We welcome it as an opportunity to have the decisions in discrimination cases measured by the 
courts as to their fairness.

To be sure, guaranteed access to the courts and 
back pay possibilities may possibly mean a heavier 
volume of court cases than we have witnessed before. 
This will challenge the quality of administrative 
handling of complaint cases, and may well— as the 
legislation means it to— improve it where improvement 
is needed.

We do foresee the development of a body of legal 
precedent which will need to be followed by Federal 
appeals examiners handling discrimination complaints. 
I. Kator, Third Generation Equal Employment Opportunity, Civil Service Journal 1 (July-September,
1972) at p. 5.

-53-

r



IV.
PERSUASIVE CASELAW SUPPORTS THE REQUIREMENT 
OF A TRIAL DE NOVO IN FEDERAL EMPLOYMENT CASES BROUGHT UNDER TITLE VII

Neither this Court nor any other Court of Appeals has 
yet decided whether Title VII plaintiffs are entitled to a 
plenary judicial trial on the merits in federal employment 
discrimination cases. See, e. g., Johnson v. U.S. Postal 
Service. 497 F.2d 128 (5th Cir. 1974). However, it is clear 
that the decision below is contrary to the better reasoned 
decisions of district courts in this Circuit, Griff1n v. U .S. 
Postal Service, 7 EPD ^9133 (M.D. Fla. 1973); Jackson v. U.S.
Civil Service Comm'n, 7 EPD ^9134 (S.D. Tex. 1973); Reynolds
v. wise. 375 F.Supp. 145 (N.D. Tex. 1974), and, indeed, is 
contrary to the better reasoned decision of the same Texas 
district, Jackson v. U.S, Civil Service Comm'n, supra.

An important element in the reasoning of these district
courts is that, " . . .  had [Congress] intended that the scope
of review be less than a trial de novo —  that which is afforded
the employee in the private .sector -- it would have so indicated
since the specific words used in the statute merely refer the
government employee to the rights given to the employee in the
private sector." Jackson v. U.S. Civil Service Comm'n, supra,

15/7 EPD at p. 0756. "(T]he plain statutory language of the Act

The amendments specifically state that the newly authorized civil actions are to be 
governed by the provisions in the original

- 5 4 -



authorizing private actions wi thout restricting the forum
court to a review of the administrative record" (original

2 6/
emphasis) Reynolds v. Wise, supra, 375 F.Supp. at 3.40.

25/fCont'd.]
act. The incorporation of these original 
provisions makes it clear that the legis­lative intent was to provide the same rights and forms of relief to persons subjected to discriminatory conduct by federal agencies 
as were available to persons covered by the original act. Griffin v. U.S. Postal Service, 
supra, 7 EPD at p. 6752.

The district court in Cnrreathers v. Alexander, 7 EPD 1(9379
(D. Colo. 1974) expressly relied on Alexander v._Gardne r-
nonvor Co., supra, and McDonnell Douglas CorP. V. Gx.aQil, sunra. for the lesson that "federal courts have plena r y 
powers in Title VII cases and that an employee’s right to bring an action under Title VII is independent from and exists 
coequally with applicable state and federal statutes. We find 
of little moment, in our interpretation of Alexander̂ , the fact that the case involved a private employer defendant as dis­
tinguished from the instant case which concerns the federal 
government of the defendant employer." (original emphasis)
7 EPD at p. 7710. Compare Bowers v. Campbell, B EPD H9752 
(9th Cir. 1974) .

After examining the scheme of federal laws which seek to alleviate employment discrimination, the 
Court believes that the intent was to give all. employees —  both those who work for governmental 
agencies and those who work for private employers 
-- essentially the same rights. The Civil 
Service Commission is entrusted with broad 
powers to enforce fair employment in federal 
agencies somewhat broader perhaps than the EEOC's. However, the statute itself (42 U.S.C. 
§2000e-17(c) specifically grants the right to 
'file a civil suit and subsection 2000e-17 (d) makes applicable to such suit theprovisions governing suits filed against private employers.

- 5 5 -



These courts have also found that legislative history, 
as set forth by the Supreme Court in Morton v. Mancari, supra, 
requires what the language of §§717(c) and 717(d) so clearly 
states:

. . . the government's position ignores thereason behind the congressional action. The 
Congress, as evidenced by the legislative his­
tory of the•Act (Legislative History of the 
Equal Employment Opportunity Act of 1972, 92d
Cong. 2d. Sess., 1972 U.S. Congressional and Administrative News 1005-1054), was dissat­isfied with the way in which the Civil Service Commission was doing its job to prevent racial 
and other discrimination in the federal govern­ment. Especially disturbing was the lack of a meaningful federal review of actions taken 
by agencies which had held something less than 
true and complete proceedings and had used inadequate standards. Had Congress intended 
that the old form of judicial review remain, 
it would not have given the government em­ployee the right to a civil action. Jackson 
v. Civil- Service Comm ‘ n. , supra, 7 EPD at 
pp. 6755-56.

"Because of the defense of sovereign immunity, however, de­
cisions made within this regulatory scheme were seldom subject

26/ [Cont'd.]
The Court believes that Congress, had it intended the rights of government employees 
to sue in court to differ from those of private employees, would have clearly in­
dicated that intent. Robinson v. Klass^n,
No. LR-73-C-301 (E.D. Ark. October 3, 1974).

For discussion of inapplicability of substantial evidence 
standard of §706(2) (e) of the A.P.A., see Guild ay v..U_J>. 
Justice Dept.. 43 LW 2195 (D. Del. October 22, 1974).

-56-



to judicial review, and even if the defense was avoided the 
scope of judicial review was generally restricted to a deter­
mination of whether the agency followed proper procedures or 
whether there was substantial evidence in the administrative 
record to support the agency's findings." Griffin v. U.S. 
Postal Service, supra; Reynolds v. Wise, supra, 375 F.Supp.
at 140-49.

These courts have also recognized that the purpose of
§717 requires a trial de novo in which little weight be given
administrative proceedings.

Only if a trial de nove is mandatory will the federal employee be assured of the 
Congressional intent and that is a full, im­partial review of the case in an adversary con­text. This decision does not mean to imply that 
the record built upon the administrative level is to be disregarded. It may be introduced in­
to evidence and considered along with the other 
evidence introduced, just as the EEOC findings 
may be introduced in private sector suits. Cf.
Smith v. Universal Services, 454 F.2d 154 (5th 
Cir. 1972). The plaintiff has characterized the trial as one not duplicating the admin­istrative hearing, but as one supplementing 
that hearing, but safeguarded by use of the rules of evidence in a true judicial setting.
This Court believes tlva t Congress intended no 
less. Jackson v. U.S. Civil Service Comm'n., 
supra, 7 EPD at p. 6756.27/

The two policy arguments advanced by the Government for limiting court reivcw to the 
"substantial evidence" standard are not con­
vincing. The Government fears that its aggreived 
employees may add claims of discrimination, no



\

27/rCont'd.l
matter how frivolous, to pedestrian per­
sonnel disputes. It is not clear to this Court, however, how a requirement that the Government disprove discrimination with more than "substantial" evidence will provide a 
haven for frivolous claims. Indeed, courts have found little difficulty thus far in 
screening out pro forma discrimination claims through the normal mechanisms of the Federal 
Rules of Civil Procedure. As a further mat­
ter, the Government asserts that the standard of review in Hackley "insults the agency [the 
Civil Service Commission] Congress specifically 
designated as dealing with the problem of dis­
crimination." In the first place, Congress 
specifically provided that an aggrieved employee may seek judicial review of the agency decision 
or order without appealing to the Civil Service 
Commission. More important, this Court cannot accept the logical corollary to the Govern­
ment's argument —  that providing no judicial 
review whatsoever would be a compliment to the Civil Service Commission. What is at stake here 
is the degree of public certainty that there is 
no discrimination in federal employment.Opting for greater certainty does not disserve 
the Civil Service Commission. Guilday v, U.S. 
Justice Dept., supra, 43 LW at 2190.

-5 8 -



V.
THE RIGHT TO A TRIAL DE NOVO IS NOT WAIVED 
WHEN THE EMPLOYEE ELECTS TO HAVE A FINAL AGENCY DECISION WITHOUT UNDERGOING AN ADMINISTRATIVE HEARING, AS SPECIFICALLY 
PROVIDED BY §717 (c)

§717 (c) expressly provides that, " . . .  after one 
hundred and eighty days from the filing of the initial charge 
with the department, agency, or unit . . . , an employee or
applicant for employment, if aggrieved by the final dispo­
sition of his complaint, or by the failure to take final 
action on his complaint, may file a civil action as provided 
in Section 706." The face of the statute thus makes clear 
that complete exhaustion of available administrative remedies 
is not required. See supra at pp. 6-8. Depriving plaintiff of a 
trial de novo or remanding for an administrative hearing for timely 
exercise of the statutory right to go to court would imper­
missibly contravene the plain intent of Congress to provide 
a plenary judicial trial for complaints of federal employment 
discrimination. See McDonnell Douglas Corp. v. Green, supra,
411 U.S. at 798-99; Alexander v. Gardnor-Denver Co., supra,
39 L.Ed.2d at 65 n.21. Legislative history is in accord 
with clear statutory language. For example, §717 (c) was 
explained in the following terms after the conference:

The provisions of Section 706(f) through (k), 
concerning private civil actions by aggrieved 
persons, are made applicable to aggrieved 
federal employees or applicants for employment.

-59-

r*



Such persons would be permitted to file 
a civil action . . . after 180 days from thefiling of an initial charge with the agency, or the civil Service Commission. Legislative 
History at 1851.

"[I]t is clear that there can be no prospective waiver 
of an employee’s rights under Title VII”, Alexander..v. Gardner- 
penver Co., supra., 39 L.Ed.2d at 160. In McDonnell Douglas 
Corp. v. Green, supra, 411 U.S. at 798-99 and Alexander_v. 
Gardner-Dcnver Co., supra, 39 L.Ed.2d 157-58, the Supreme Court
construed Title VII to require trials de novo after plaintiffs, 
as here, satisfied express statutory jurisdictional prerequisites. 
The Supreme Court rejected waiver arguments in both these 
cases, the only opportunity the court has had to deal with such
arguments in the Title VII context.

Even if we assume arguendo that waiver of the right to 
plenary trial on the merits is possible under certain circum­
stances, in this case plaintiff had absolutely no notice that 
by foregoing an administrative hearing and going directly into 
court, he would waive or limit any right to a plenary judicial 
proceeding. Indeed, the "Notice of Proposed Disposition of Dis­

crimination Complaint" recommended by the CSC for the use of 
agency EEO officers, Attachment 5 to FPM Letter 713-17, see 
Appendix VII, contains no such notice of waiver. There was, 
in short, no requisite knowing and intelligent waiver of rights.

-60-

r'



The rule lias been clear, at least, since Johnson v._Zerbst_,
304 U.S. 458, 464 (1938), citing Aetna Ins. Co.,, v. Kennedy,
301 U.S. 389, 393 (1937); Hodges v. Easton, 106 U.S. 408,
412 (1882); Ohio Bell Telephone Co. v. Public Utilities,
Comm., 301 U.S. 292, 306-07 (1937), that, "'courts indulge
every reasonable presumption against waiver' of fundamental 
constitutional rights and that we 'do not presume acquiescence 
in the loss of fundamental rights. A waiver is ordinarily 
an intentional relinquishment or abandonment of a Known 
right or privilege". The government actually has misled com­
plainants by not informing them that civil action rights are 
diminished if different procedural alternatives are pursued.
See, for example, the table of Discrimination Complaint Pro­
cedures and accompanying explanatory statement given to all 
federal employees to apprise them of their EEO rights,
Appendix VIII. Thus even if we assume that a trial do novo 
may be waived, the government cannot assert waiver in this or 
other cases as a matter of law, in light of present admin­
istration of the CSC complaint process.

In fact, the waiver argument is a red herring. In 
this case the government wishes to prevent a plenary judicial 
trial on the merits when an administrative hearing has not 
been held. However, the government also argues in cases in which

-61-



an administrative hearing has been held that no trial dê  novo 
can be held. In this second set of cases, the government's 
theory is that Congress "intended to afford a federal em­
ployee a full hearing in the District Court only when he 
was not afforded an opportunity for a full hearing before the 
agency, i. e., only when the jurisdictional prerequisite for 
his civil action was agency inaction for 180 days." Brief 
for Appellee, Hacklcy v. Johnson, No. 73-2072 (D.C. Cir.
1974) at 43. It is clear that the government simply wishes 
to deprive all federal employees subject to discrimination of 
their only opportunity for a truly "fair and impartial hearing" 
no matter what the circumstances.

-62-



C O N C L U S I O N

For the reasons set forth above, the Court should 
reverse the decision of the district court of September , 
1974 and remand this case with instructions for a trial
de novo.

Respectfully submitted,

JACK GREENBERGJAMES M. NABRIT, III CHARLES STEPHEN RALSTON 
MORRIS J. HALLER BARRY L. GOLDSTEIN10 Columbus Circle

New York, New York 10019

Attorneys for the N.A.A.C.P. Legal Defense and Educational Fund, Inc.

- 6 3 -



CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of
December, 1974, copies of Brief For N.A.A.C.P. Legal 
Defense and Educational Fund, Inc. as Amicus Curiae 
were served on counsel for the parties by United States 
mail, air mail, special delivery, postage prepaid, 
addressed to:

David T. Lopez, Esq. 
4809 Montrose Boulevard Houston, Texas 77006

Jack Shepherd, Esq.
Chief Assistant United States Attorney
Southern District of Texas
12000 Federal Building
515 Rusk AvenueHouston, Texas 77002

Attorney for Amicus Curiae



A P P E N D I X  I
Attachment 1 to FPM Ltr. 713-17

Tart 713 —  EQUAL OPPORTUNITY

(Picsenl regulations an* shown in right-hand column -- deleted material 
is bracketed; added material is shown in left-hand column)

SUUPAHT A. IBF.SF.HVEDJ
SimiV.HT II. r.QVAI. Orl’OHTl NtTY FmiOl'T 
REGARD TO HACK. COI.OH, IU.I.1CION. SEX. 

Ol! NATIONAL ORIGIN
General Frovi$ion»

Sec.
713 201 Purpose find applicability
713.202 General policy
713.203 Agency program
713.204 Implementation of agency program
713.205 Commission review and evaluation of agency

program operations

A frn ry  Ref o la t ion t f o r  I'uM-rcting 
Com pla in tf  of D itc r im ina t ion

713.211 General
713212 Coverage
713.213 Precornplaint processing

* 7)3.214 Piling and presentation of complaint
713.215 Rejection or cancellation of complaint 
713.210 Investigation
713.217 Adjustment of complaint and offer of hearing
713.218 Hearing
f t o . i l *  nciuilunsnip lo ouicr agency uppcnuie pro­

cedures
713.220 Avoidance of delay
713.221 Decision by head of agency or designee
713.222 Complaint file

Appeal to the ComrnUtion

713.231 Knlitlernent
713.232 Wharf to appeal
713.233 Time limit
713.234 Appellate procedures
713 235 f  Appellate rc\ic'i]by the Commissioners

Review 7l3.23G Relationship to other appeals

Report* to the CtfmsuMsaa

713.241 Reports to the Commission^.
on compldints

'OlL1 d-l’nriy All opat I nns
713.251 Third-party allegations ol discrimination 

Freetiom from Kept' i '■ -vI_or 1 n t it f flfncp
713.261 Freedom from reprisal
713.262 Review of allegations of reprisal 

Remedial AcLiuuii
713.271 Remedial actions

Right To File a Civil Action . .
713.281 Statutory right
713.282 Notice of right
713.283 Effect on administrative processing

ID -



Attachment 1 to PPM Lir. 713-17 (j)

J 86 Stat.

decision or other final action on

S t l l l 'A K T  C. M IN O lI l l  Y |* S T A T IS T ! !  S
s\ s 1 1 . vi

713.301 Applicability 
713 302 Agency syctrms

s i nf*.\UT i>. K . iru .  o r ro i tT i 'M T V  m ituoi t  
k k c u u) to muTics, m uin u. status, on

PH YS ICAL  HANDICAP

713.<01 Equal opportunilv without regard to politics, 
marital statu*, or physical handicap 

Actiiohitv . The provisions of this part 713 issued
__under '• I '.S.C. 1301, 3.101. 3302. 7131-7131, 730 Tl

L.O. 10.i7< . 3 t i l t ,  1 ‘Pi-1 -1 OoS Comp., p. 218, l i t ) .  
11222, 3 C l  It l o o t -1903 Comp., p. 300, K O  11478 
3 CPU  19G9 Comp.)

S U BPA RT  A. [RESERVED]

SURRART u. EQUAL  O P P O R T U N I T Y  
W IT H O U T  REGARD TO  HALE, COLOR, 
R E L IG IO N ,  SEX, OR N A T IO N A L  O R IG IN

G enera l P rov is ions

See. 713.201 Purpose and applicability, (a) 
Purpose. This subpart sets forth the peculations 
under which an agency shall establish a con- 
tiuuinp affirmative pro;;rnin for equal oppor- 
tuiiity in employment and personnel operations 
without regard to race, color, religion, sex, or 
national origin and under which the Commission 
will review tin agency's program and entertain 
an appeal from a person dissatisfied with an 
agency’s (processing of] his complaint of dis­
crimination on grounds of race, color, religion, 
sex, or national origin.

(L) Applicability. ( l )  This subport applies (i) 
to military department as defined in section 
1(L of title 5, United States Code, executive 
agencies (other than the General Accounting 
Office) as defined in section 103 of title 5, United 
States Code, —>tho United States Postal Serv­
ice, and the Postal Rule Commission,<- and 
to the employees thereof, including employees 
paid from nonappropriated funds, and ( ii) to 
tlio.-.c portions of the legislative and judicial 
branches of the federal Government and ihe 
government of the District of Columbia having 
positions in the competitive service and to the 
employees in those positions.

(2) I his subpart docs not apply to aliena 
employed outside the limits of the United 
States.

2 a -



Attachment l to Fi'M Ltr. 713-17 (3)

Sec. 713.202 General policy. It is the polict 
of the Government of tho United States and 
of the government of tin- District of Columbia 
to provide equal opportunity in employment 
for all persons, to prohibit discrimination in 
employment because of rucc, color, religion, 
i>cx, or ntitionuI origin, and to promote the full 
realization of equal employment opportunity 
through u continuing nflinnativc program m 

' each agency.
Sec. 713.203 Agency program. The head 

of each agency shall exercise personal leadership 
ill establishing, maintaining, and carrying out 
ft continuing ftfiirmalive program designed to 
promote equal opportunity in every aspect of 
agency personnel policy mid practice in the 
employment, development, advancement, and 
treatment of employees. Under the terms of its

and assure, that the principal and 
operating officials responsible for 
carrying out the equal employment 
opportunity program meet established 
qualifications requirements

program, an agency siialijT to the maximum 
extent possible):

(ft) Provide sufficient resources to administer 
its equal employment opportunity program in a 
positivc and effective manner^,

(b) Conduct a continuing campaign to eradi­
cate every form of prejudice or discrimination 
bftsed upon rare, eolor, religion, sex', or national 
origin, from the agency’s personnel policies and 
practices and working conditions, including 
disciplinary action against employees who 
engage in discriminatory practices;

(c) Utilize to the fullest extent the present 
skills of employees by all means, including the 
redesigning of jobs where feasible so that tasks 
not requiring the full utilization of skills of 
incumbents are concentrated in jobs with lower 
skill requirements;

(d) Provide the maximum feasible oppor­
tunity to employees to enhance their skills 
through on-the-job training, work-studv pro­
grams, and other training measures so that they 
may perform at tluir highest potential and 
udvence in accordance with their abilities.

(e) Communicate the agency’s equal em­
ployment opportunity policy and program end

its employment needs to all sources of job 
candidates without regard to rate, eolor. re­
ligion, sex. or national origin-, and solicit their 
recruitment a—istance oil a continuing basis.

3a -



Attachment 1 to FPM Ltr. 713-17

1 abor

as m a n y __ _______________________

, F e d e ra l ” ^oinen1̂  "Program ________ .
Coordinators, and other persons

(f) Participate at the community level with 
other employers, with schools mul universities, 
and with other public nnd privutc groups in

* cooperative action to improve employment 
opportunities nnd community conditions that 
nflect cmployubility;

(g) Review, evaluate, nnd control numa- 
perial anil supervisory performance in such u

'manner as to insure a continuing affirmative 
application nnd viperous enforcement of the 
policy of equal opportunity, and provide 
orientation, training, and advice to munapers 
and supervisors to assure their understanding 
and implementation of the equal employment 
opportunity policy and program;

(ii’) Provide recognition to employees, super­
visors, managers, and units demonstrating 
superior accomplishment in equal employment 
opportunity;

(i) Inform its employees and recognized- 
__£uiiployco}organizations of the affirmative equal

employment opportunity policy and program 
and enlist their cooperation;

(j) Provide for counseling employees and 
ttjjjimunib v, m; ucijcvc uicj nine uccu uis- 
criminated against because of race, color, 
religion, sex. or national origin and for resolving 
informally the matters raised by them;

(k) Provide for the prompt, fair, nnd impar­
tial consideration and disposition of complaints 
involving issues of discrimination on grounds of 
race, color, religion, sex, or national origin; and

( l )  Establish a system for periodically evalu­
ating the effectiveness of the ag-cncy’s overall 
equal employment opportunity effort.

Sec. 713.204 Implementation of agency pro­
gram, To implement the program established 
under this subpart, an agency shall:

(a) Develop the plans, pro ures, and 
regulations necessary to carry out its program 
established under this subpart;

(b) Appraise its personnel operations at 
regular intervals to a.ssuro their conformity 
with the policy in section 713.202 and its

program established iu accordance with section 
713.203;

(c) Designate a Director of Equal Etnploy-
___merit Opportunit vf/and*^uc!:J Equal Employ­

ment Opportunity OMi< vis [anil] Equal Employ-
__nu*nt t );qu»ri '.nitty__C Vmn .dors,, as may bo

neccssury, to assist the bead of the agency to 
carry out tho functions described in ibis sub-

4a_



and the qualifications of the 
persons so designated

nat lonal and regional equal 
employment oppoitunity

%

complai nts

subject to section 713.251,

Attachment 1 to FI’M bit 713-17 < ̂  >

par. i„ «U o r f .n i« . . »n . l
locut urns 

i-.tor

n> Employ m.Mil Opportunity. the ^ '1'"*'
Employment Opportunity 0lll,er-
Equal' Employment Opportunity (.nun-cloj,
I S h he subject to review by the Co.n.ne,
The Director of Equal Employment Oppor­
tunity shall be under the mimcd.ate super­
vision of the head of his agency, am shall he 
riven the ...nl.ority necessary to enable him to 
carry out his responsibilities under tire r e l a ­

tions iu this subpart; t- i ...
(d) Assign to the Director of K«junl Employ

ment Opportunity the (mictions, o f ;
(1) Advising the head of Ins agenev u.th 

respect to the p .y .a n i tm n ^ . ls n s ,  p n ^ lu r c s  
rcimlaUiins^ reports, and other \ m  / *  I
taining to the policy in section * V 1
agency program required to ho e.s,abashed
under section 7 hi.“20.1; ,

(2) Evaluating from mno 1° ,um‘ t,u 
sufficiency of the total agency «
equal emph.vmcnt opportunity m l  np rim, 
thereon to the head of the agency "ith recom­
mendations as to any improvement ,,r cor.ection 
needed, including remedial o r_^ ,p lm ar> -  ^

rc^;:;i;-of;;^iathrirr^onsib,u.^
H) When uuthori/.ed by the h< ad o 

agency, making changes in programs and 
procedures designed to eliminate disc,.minatory 
practices and improve the agency's program fo 
equal employment opportunity;

•i- t ...... . rtllll.Tl(-, l>y an Equal 
ounselor, >f any

(4 ) Providing for couiisclm 
Employment Opportunity l 1 
aggrieved employee or applicant for employ 
nrciit wlm believes that he has been dm. rim - 
tinted against because of race, color, rehpon 
sex, or national origin ami for attempting f  
resolve on an informal basis the matter r a w  
by the employee or applicant before a com­
plaint of discrimination may be filed under

‘ ^ ’ Ividlng f -  the receipt and investig.-
f i i  qLmdtuduwlCvXUirbunQnf dmcnnunau.m
in^'ersonnel matters "ithin the agency, swlqc. .
t0 sections 7h< 211 through , h i- ’ -‘ J.

(G) lV.vidu.g for the receipt. .nvest,„u.um. 
and disposition of general allegations by oif. t.t-

tions'or other third paM.es of aiscr.m,m. mn
pemoimel l l “ rl

are unrelated l- an mdivi.lmhd comp ««n ‘
discriniin.it,on subject to -returns .h>-t 
through 7 hi 222. under procedures delenmii . 
hv the agency to he upproprmle. "  ith noid. • 
lion of dreixioii to the party. s.ibiniUiur 
allegutionj

5a _



Attachment 1 to FPM i,tr. 713-17 (6)

(u) Insure that equal oppor­
tunity for women i s an integral part 
of ftie agency's overall program by 
assigning to the Federal Women's 
Program Coordinators the function of 
advising the Director of Equal 
Emnlovment Onoortunftv on matters 
affecting the employment and advance­
ment of women;

(7) When Authorized by tho head of tho 
• Agency, making the decision under section
713.221 for tho bond <•{ tlui agency on complaints 
of discrimination and ordering such corrective 
mcusurcs as he may consider necessary, in­
cluding the recommendation for such disciplin­
ary action as is warranted l>y the circumstances 
when an employee iias been found to have en­
gaged in a discriminatory practice, and

(8) When not authorized to make tho de­
cision for tho head of the agency on complaints 
of discrimination, reviewing, at his discretion, 
tho record on any complaint before tho de­
cision is made under section 7.13.221 und making 
such recommendations to the head of th* agency 
or his designee as ho considers desirable, in­
cluding tho recommendation for such disciplin­
ary ac'ion nr is warranted by the circumstances 
when an employee is found to have engaged in a discriminatory pructicc;

—>

(f) Publicize to its ' .____
employees and post permanently 
on official bulletin boards:

(1) The names and addresses of 
the Director of Equal Employment 
Opportunity and the Federal Women's 
Program Coordinators;

(2) The name and address of the 
appropriate Equal Employment 
Opportunity Officer;

and

/To) Publicize to its employees:
(1) Tho name and address of tho Director of 

Equal Employment Opportunity;
(2) Wlioro appropriate, tho name and ad­

dress of an Equal Opportunity Ofiicor; ur.d]

(3) Tho name and address of the Equal 
Employment Opportunity Counselor and tho 
organizational units ho serves; his availability 
to counsel an employee or^qualilicdj applicant 
for employment who behoves that ho has boon 
discriminated against because of rare, color, 
religion, sex, or national origin; and tho re­
quirement that an employee or Jqiiulincn) ap­
plicant for employment must consult the Coun­
selor as provided by section 713 213 about hiv 
allegation of discrimination because of race, 
color, religion, sox. or national origin before a 
complaint as provided by section 713.214 may 
be filed; ^

6a-



- \ o •

Attachment 1 to PPM Ltr. 713-17 (7)

(A) Time limits for contact- —---- -~y
ing an Lqual Employment Opportunity Counselor;

(R> reasonable accommodations to 
the religious needs of applicants and employees, 
including the needs of those who observe the 
Sabbath on other than Sunday, when those 
accommodations can he made/by a grant of 
leave, a change of a tour of duty, or other 

.means) without__undue J interference with] the

— program of equal employment opportunityJ  

---->

(by substitution of another __________
qualified employee, 
hardship o n ______________ _________

If an agency cannot accommodate n n ______business of the age:iev*̂ *r with the rights of
employee or applicant:, it has a duty in a other applicants or employees; endj*-
comp la in t arising under this subpart to ___jfgj Make readily available to its employees a
demonstrate its inability to do so; copy of its regulations issued to csrrv out its

( h ' ___________________________
; and ___________ ____________________

(1) Submit annually for the ----
review and approval of the Commission 
written national and regional equal 
employment Opportunity plans of action.
Plans shall he submitted in a format 
prescribed by the Commission and shall 
include, but not be limited to --

tii Provision tor the establishment 
of training and education programs designed 
to provide maximum opportunity for employees 
to advance so as to perform at their highest 
potent ia 1;

(2) Description of the qualifications, 
in terms of training and experience relating 
to equal employment opportunity, of the 
principal and operating officials concerned 
with administration of the agency’s equal 
employment opportunity program; and

(3) Description of the allocation of
personnel and resources proposed by the ^ro- 713.205 Commission review and
agency to carry out its equal employment evaluation of agency program operations. The 
opportunity program. Commission shall review and evaluate agenev

program operations periodically, obtain such 
reports as it deems necessary, ami report to the 
President as appropriate on overall progress. 
l\hen it finds that an agency’s program opera­
tions are not in conformity with th<- police >ct 
forth in section 713,202 and the regulations m 
this subpart, tlie Commission shall require im­
provement or corrective action to bring the 
agency’s program operations into conform­
ity with this policy and the regulations in this 

_____ Mihpnrt »The head of each department and 
agency shall comply with the rules, 
regulations, orders, and instructions 
issued by the Commission.

_ 7a-



. \J ■

Attachment 1 to H1TI Ltr.  713-1? (S )

r

with  that agency

(Section 713.251 applies to general 
allegations by organizations or other 
third parties.)

issues in

issues in

21 calendar days

Agency  I t cp n la l i o n *  f o r  1‘roccss in -  
( 'oni/ ita ints  <«/ D i s c r i m i n a t i o n  

See. 713‘i l l  General. An agency shall ensure
that its regulations governing the processing <>f 
complaints' of discrimination on grounds of race, 
color, religion, sex, or national origin comply 
with the pr nciplcs mill requirements in sections
713.212 though 7)3.222.

Sec. 713.212 Coverage, (a) The agency shall 
provide in its regulations for the aeieplnnce of 
n complaint from any aggrieved employee or 
applicant for emp loym en t h<> believes that. i>0 ■ 
hits been discriminated against l era use of r.u c. 
color, religion, sex. or national origin. A com­
plaint may also he filed by an organization for 
the aggrieved person with his consent.

(b) Sections 713.211 through 713.222 do not 
apply to the consideration by an agency of a 
general allegation of discrimination by an or­
ganization or other third party which is niyai- 
laU l̂ to an individual complaint of discrimina­
tion subject to sect ions 7 13.211 through i 13.

See. 713.213 Precomplaint processing, (a) 
An ngenev shall require that an aggrieved person 
who bclievc-s that he has been discriminated 
against because of race, color, religion, sex, or 
national origin consult with an l-quid 'employ­
ment Opportunity Counselor when iie wishes 
to resolve the matter. The agency shall require 
tho Kqtiul Employment Opportunity Counselor 
to make whatever inquiry lie believes necessary 
into the matter; to seek a solution of the matter 
on an informal basis; to counsel the aggrieved

__person eoiieermn*/ thefuiems of| the matter, to
keep a record of his counseling activities so ns 
to brief, periodically, the lsqual employment 
Opportunity Officer on those activities; and. 
when advised that a complaint of discrimination 
has been accepted from nn aggrieved person, 
to submit a written report to the liquid em ­
ployment Opportunity Officer, with a copy to 
the aggrieved person, summarizing his notions 
and advice both to the agency and the aggrieved 
person concerning I he /merits n j j  tho matter. 
TIuTKqmd employment Opportunity Counselor 
shall, insofar as is praeliruhle, conduct his Imal 
interview with the aggrieved person not later 
than jl .r, workdaysjafier the date on which the

n

- 8a-



Attachment 1 to FPM Ltr. 713*17 (9)
If the final interview is not concluded —  
yithin 21 days and the matter has not 
rcviously been resolved to the satis­

faction of the aggrieved person, the 
aggrieved person shall be informed in 
writing at that time of his right to 
file a complaint of discrimination.
The notice shall inform the complainant 
of his right to file a complaint nt 
any time after receipt of the notice 
up to 13 calendar days after the final 
interview (which shall be so identified 
in writing by the Equal Employment 
Opportunity Counselor) and the approprlate 
offirial with whom to file a complaint.
The Counselor shall not attempt in any 
way to restrain the aggrieved person 
from filing a complaint.

(b) The agency snail assure that full -----
cooperation is provided by all employees
to the Equal employment Opportunity Counselor 
in the performance of his duties under this 
sectioif.

( c )  -----------------------------------------------------------------------------

and be signed by the complainant. 
The complaint may be delivered in 
person or submitted by mail.

3 0 ---------------------:-------

or his representative 
an appropriate official

(2) The appropriate officials to 
receive complaints are the head of the 
agency, the agency's Director of Equal 
Employment Opportunity, the head of a 
field installation, an Equal Employment 
Opportunity Officer, a Federal Women's 
Program Coordinator, and such other 
officiate as the agency may designate 
for that purpose. Upon receipt of the 
complaint, the agency official shall 
transmit it to the Director of Equal 
Employment Opportunity or appropriate 
qua 1 Employment Opportunity Officer 

who shall acknowledge its receipt in 
accordance with subparagraph (3) of 
this paragraph.

matter was called to his attention by the 
aggrieved person. /The Equal Employment 
Opportunity Counselor shall advise the ag­
grieved person in the final interview of his right 
to file a complaint of discrimination with the. 
organization’s Equal Employment Opportunity 
Officer if the mutter has not been resolved to his 
satisfaction and of the time limits governing the 
acceptance of a complaint in section'713.2 lCJ 
The Equal Employment Opportunity Counselor 
shall not reveal the identity of nil aggrieved 
person who has come to him for consultation, 
except whon authorized to do so by the ag­
grieved person, until the agency has accepted u 
complaint of discrimination from him.
__[̂ hjj The Equal Employment Opportunity
Counselor shall he free from restraint, inter­
ference, coercion, discrimination, or repriscl in 
connection with the performance of Lis duties 
under this section.

Sec. 713.211 Filing and presentation of 
complaint, (a) T i m e  l im i t e . (1) An agency shall 
roquiro that n complaint be submitted in writing 
by the complainant or his representative)’! ho 
agency may accept the complaint for processing 
in accordance with this subpart only if—

(i). the complainant brought to the attention 
of the Equal Employment Opportunity 
Counselor the matter causing him to 
believe he hod been discriminated against

____ IL'Jililil1 ;J calendar days of the date of
that matter, or, if a personnel action, 
within [l.'>) calendar days of its effective 
dnlcf jnnd

(n) tiic complainant ̂ submitted bis written
____ cci:n;ilc.1111 to I die Equal Employment,

Opportunity Officer) within 1.3 calendar 
days of the date of his final interview 
with the Equal Employment Opportunity 
Counselor.

------ >



Attachment 1 to FPM Ltr. 713-17 (10)

(3) A complaint shall bo deemed filed 
on the date It is received, if delivered 
to an appropriate official, or on the date 
postmarked if addressed to an appropriate 
official designated to receive complaints. 
The agency shall acknowledge to the com­
plainant or his representative in writing 
receipt of the complaint and advise the 
complainant in writing of all his adminis­
trative rights and of his right to file a 
civil action as set forth in section 713.281, 
including the time limits imposed on the 
exercise of these rights.

(A )

The head of the agency or his designee 
may reject a complaint which was not 
timely filed and shall reject those 
allegations in a complaint which are 
not within the purview of section 
713.212 or which sot forth identical 
matters as contained in a previous 
complaint filed by the same complainant 
which is pending in the agency or has 
been decided by the agency. He may cancel 
a complaint because of failure of the 
complainant to prosecute the complaint.
He shall transmit the decision to reject 
or cancel by letter to the complainant 
and his representative.

and of his right to file a civil action 
as described in section 713.281.

1________

1(2 ) }  The iigctiey shall extend the time limits 
in this section (i) when the rmnplainnnt shows 
that lie wns not notified of the time limits and 
was not o.demise aware of ihem, or that he 
wns prevented by eiivumsttuices beyond his 
control from submitting the matter within the 
time limits, or (ii) for other reasons con .idered 
sufficient by the agency.

(b) P r e s e n t a t i o n  o f  c o m p l a i n t  At any st age  
in the presentation of a complaint imludm 
tlie counseling stage under section 713.213. tin 
complainant {shall he free from restraint, inter-
id i*ik C| it'vt rum, «m< i iitini(iti<Mi, «»» «* • ••, M . l|
shall have the right to he accompanied, repre­
sented, and advised by a rrpi esentnt i vc of his 
own choosing. If t he  complaimu.i is an employee 
of the agency, l.e shall have a reasonable amount 
of official time to present fiis complaint if fie is 
otherwise in an active duty status. If tfie com­
plainant is an employee of (fie agency and fie 
designates another employee of tfie agency as 
his representative, tfie representative shall  [lie 
free from restraint, interference, coercion, dis ­
crimination, or reprisal, and shalTJfiavo a iea-.oit- 
iiblc amount of official time, if fie is otliciwise m 
an active duty status, to present tfie complaint.

Sec. 713.215 Rejection or cr.ncellr.tton of 
complaint, f\\ lien tfie fiend of tfie ngonev, or 
liis designee, decides to reject a complaint fie- 
raiise it was not timely filed or because it is 
not within tfie purview of section 713.212 or to 
cancel a complaint ficenitsp of a holme of the 
complainant to prosecute tfie complaint or be­
cause of a separation of the complainant which
is not. related to fiis complaint, he shall transmit 
tfie derision by letter to the complainant am. 
fiis representative^] ->Tlte decision letter -hull 
inform the complainant of bis right to appeal 
the decision of the agotiev to the (lommi'Miin 
and of the time limit within wlm li the appeal 
may lie mi Ini ii I i is![

10a-



Attachment 1 to FPM Ltr. 713-17 (11)

See. 7Ki.'2Mi Investigation. (u) Tim Equal 
Employment Opportunity Ollirer shall advise 
the Director of Equal Employment Oppor­
tunity of the acceptance of a complaint. The 
Director of Equal Employment Opportunity 
shall provide for the prompt investigation of 
the complaint. The person assigned to mvesti- 
gnte the complaint shall occupy a position in 
the agency which is not, directly or indirectly, 
under the jurisdiction of the head of that, port 
of the agency in which the complaint arose. 
The nj:eiicy shall authorize the investigator to 
administer onths and require that statements 
of witnesses shall be under ont'u or affirmation, 
without n pledge of confidence. The investi­
gation shall include a thorough review of the 
ciwumst-.iices under which the nlleped discrimi­
nation occurred, the treatment of members of 
the complainant's group identified by his com­
plaint as compared with the treatment of other 
employees in (lie organizational segment in 
which (lie alleged discrimination occurred, and 
any policies and practices related to the work 
situation which may constitute, or appear to 
constitute, discrimination even though they 
have not oecn expressly cucti ny me com­
plainant. Information needl'd for an appraisal 
of the utilization of mein tiers of the complain­
ant’s group ns compared to the utilization of 
persons outside-the complainant's group shall lie 
recorded in statistical form in the investigative' 
file, hut specific information ns to a person’s 
membership or iioumemhership in the com­
plainant's group needed to facilitate an adjust­
ment of the complaint or to make an informed 
decision on the complaint shall, if available, he 
recorded by name in the investigative file. i As 
used in this subpart, the term ''investigative 
file” shall mean the various documents and 
information acquired during the investigation 
under this section—including affidavits of the 
complainant, of the alleged discriminating offi­
cial, and of the witnesses and copies of. or 
extracts from, records, policy statements, or 
regulations of the agency--organized to -how 
their relcvnme to the complaint or the general 
environment out of winch the complaint uro-e.) 
If necessary. the investigator may obtain infor­
mation regarding the membership or noninem- 
bership of a person in the complainant's group 
by asking each person concerned to provide 
the informal mu voluntarily: he shall noi require 
or coerce an employee to provide this informa­
tion.|l’he agency shall furnish the complainant 
or Ins teprcseniativc a copy of the investigative
file J

1 1 a-



'U l achincn i ' Fl’M U r .  713-17 (12)

Tor this purpose, tin1 Agency shall 
furnish the complainant or his 
representative n copy of the in­
vestigative file promptly after 
receiving it from the investigator, 
and provide opportunity for the com- 
plain.ant to discuss the investigative 
file witli appropriate officials.

U  the agency does not carry out, or __
rescinds, any action specified bv t u
l< m adjustment for any reason
not attributable to acts or conduct of 
110 co">Plainant, the agency shall, upon 
the complainant's, written request, rein- 
£>tate the complaint for further process- 
ing from the point processing ceased under 
the terms of the adjustment.

(l>) The Ditector of Kqual Kmplovnient Op-
........... . 511,1111 orrunge lo furnish m the person
conducting the investigation u written nutItori- 
zntion (1) to investigate all aspects „f cum- 
plrnnts of discrimination. (2) to require all 
employees of ilie agency to cooperate with him 
in the conduct of the investigation. „nd t3; to 
teqtiiie employees of the agency having anv 
knowledge of the matter complained ,.f to 
furnish testimony under oath or a/lninath.ii 
without a pledge of eontidenee.

See. 71.( 217 Adjustment, of complaint and 
offer of hearing. th e  agon, y -hall proode. 
mi opportunity for adju-tment of the eomplamt 
° "  " "  ‘ "humal ba>is alter the romplainant ha, 

JTv.ewed l_he_i„ v c-l iea live f i lc^ f adjustment 
of the eomplamt i, arrived al, (he tcim, of t|„. 
adjustment shall he reduee.l to writing ll!(d 
made part of the complaint file, with a copv of 
the terms of the adjustment provided the 
coiniilainani

<1> of the proposed disposition of 
the complaint, (2) of his right to “ 
a hearing and decision by the agency 
head or his designee if he notifies 
the agency in writing within 15 
calendar days of the receipt of the 
notice that he desires a hearing, and 
J3) of his right to a decision by 
the heud of the agency or his designee 
without a hearing.
15-day

(h) If an adjustment of the complaint i, not 
arrived at, the complainant shall he notified m 

I—— ' he proposed deposition thereof 
In that notice, the agency shall advise the co.u- 
phnmmt of ->l,i, ,-igln to a hearmg will, a 
•subsequent decision by the head of the agency 
or Ins designee and hi-right to such a «l.-< i-T..u<- 
'Vlll" >,"  il bearing. The agelicv shall allow the 
Coinpliiinuiit seven calendar day., f , r e c e i p t  
of the notice lo notify the agency whether or 
not he wi-hes to have a hearing^

(c) If the complainant fails lo notify the

--^XUC.Z. Xtf In- wit Ion i In* f j - i i av | period
pre-erthed m paragraph < h> of i|„- -eetnm the 
•'l>|..op,,H,e Kqu.d Kmplovmen, Oppottmti.v 
, . ‘ 1 “doft 'he disposition of i he com-

l " UfU l " " l M,'Cil m  .......... e >enr to the com-
P u'lnmt umler paragraph ( l „  „ (  this .. ........
the decision of ,|ir agency ...... . eomplamt
When delegated the ami.... . llt;lkl. „ ,
moo for .he head ..f tll0 „n.ie, .1.... ,
..........When this Is done, the



Attachment 1 to Fl’H Ltr .  713*17 (13)

and of his right to file a civil 
action as described in section 
713.781.

Conij' 1 ainl s 
a complaints

complaint c

a complaints

complaints
complaints

complaints

complaints

KinploVincnf Oppoi | unit v (Miner shin! Irmis- 
lint llie deci-ion In litter m the < omphiliuiitt 
■mil In-, i epi e-ent ill It e which *.111111 inform the 
<-< ■ 1111 ■) ti 111 :i 111 uf his iil'IiI nf up pen I In the (.‘oin- 
niis-i.in mnl l lie lime limit applirnhle tlierel'//1 f 
the Kfjtnil Kiiiplnymeiit Oppnrinitity Olhcer 
lines lint i--Mic n derision under this paragraph, 
the cninplain I , together w it !i tlie eoiiiphunl file, 
sliitll he forwarded In the heiul of the agency, 
or In-, designee, for decision under section 
71.V221.

See 7 I -I I s Hearing. fa i /. I/j/» o/s/r j a m  in< r .

I lie heal III" sh.ill he iictli h\ .̂l II* appeal-^ C\- 
■iiiuuer u Im miisi lie an etnplovee of ntiother 
ugenry except when the agonry in whirl) (lie 
romp!.not arose is ( 1) the go\ eminent of the 
District of (.'.iliinihi.t or 17?> an aeeiiry whieii. 
by reason of law. is prevented from divulging 
informuiion concerning the matter complained 
of ton person who luis not received the security 
clearance required hy thai agency, in which 
event the agciu y shall arrange with the C’niu- 
missiou for the selretlon of an impartial em­
ployee of the acenry in - m  o u»fa ppe.il-J ex­
it mute”  TFor puipo-es ol this paragraph. the
i \ . . f i v. r  : . * » . . i i. ." kl......... **• *"*•*•* ‘ * *........V.vs. .. ••
single agency l The agency in which the com­
plaint aio-e shall reipie-t the ( ’oimae-iuii 'n 
supply the n..me i f  /an appeal J  examiner who 
Inis been certified by the t'onuni-sioii as i|it;,li- 
iied lo conduct a hearing under ihi- ' ivi ioii .

(ii) . Ii i ainji im ill< !vi litanii'j. The agency in 
which the complaint am-e shall nan-mu the 
cuiiiplaiiit file containing all the doeiinienls 
deseiilied in section 713 J'Jd which have hem 
acquired up to that point in the processing of 
the complaint, including the original copy of 
the. investigative lilts (yvhicli shall he considered 
hy the {appeals] examiner in making his recom­
mended decision on the complaint), lo tliejup-

1_____ peal IcMimincr who shall review the enniplaint
file to determine whether further investigation 
is needed before scheduling the hearing. When 
the [inuieal'l examiner determines that furlhet 
investigation i~ needl'd, lie ~lia!l remand the 
complaint to the Director of hqu.d hmploy- 
111 cn t Opportunity for fuither ua e-ticat ion m 
arrange for the appear'am e ol wtine-'O- net e-- 
satv to siippU the needed information al the 
heating The reiptuemeot - ol -ei'tioii 71.1. Jit* 
tipplv to any futihei mv e-tlcat ion hy the 

j -i,v:.i> mi the ininulamt. T h t f ifpenlJ"\ainniei 
* shall schedule llie healing (or a convenient 

time and place.

13 a -



it.

r

r

Attachment 1 to H ’M Ltr.  713-17 (14)

complainlh

complaints

compla i n t s

complaints
complaints

complaints

c o m p l a i n t s __________ ____________ —
any agency subject to this subpart

m a y _______________________ _____
an employee of any Federal agency
determines is necessary to furnish--
information pertinent to the com­
plaint under consideration. The. 
complaints

An agency to whom a request is mado— -

c o m p l a i n t s ------------— -------- —
not administratively impracticable-' 
administratively impracticable -----

to whom request is made

(c) Conduct of / u a r i m i .  (1) Attendance nt the 
hearing is limited to persons deteimined by ilto 

£ippcakj CMiiiiiner to have u direct connection 
with the complaint

(2) The [appeal J examiner slinll eondtict the
1,Pilling so ns to bring out pertinent fuels, inchtd 
ing tlic production of pertinent documents. 
Kulcs of evidence shall not be applied strictly, 
Imt the fnppenU]examiner shall exclude irrele­
vant or unduly repetitious evidence. Informa­
tion having a hearing on the complaint or em- 
plovineut policy or practices relevant to the 
complaint shall be received in evidence. '1 he 
complainant, Ins representative, and the repre­
sentatives of the agency at the hearing shall be 
given the opportunity to cross-examine wit­
nesses who appear and testify. 1 cspniony -shall 
be under oath or aflirinntiou.

(d) I ’ l x r r r s  o ) [ i / > / i f ( i / < ]  f  s i i n m n . r .  In mhlitmi^ 
"To  the other povv eis vested in the £ ippo;ds) 
examiner by "the agency" m accordance with this 
siihpnrt, the agency shall a u th o n / .c  ihejappcnlj 
examiner to:

(1) Administer oaths or ufhrinations; 
rov w„™..i..*p <|;p rf *.!•: l:c.’.r::.g;
(3) Kule on oilers of proof;
(<1) Limit. the number of witnesses whose 

testimony would he unduly repetitious; and .
(5) Exclude any person from the hearing for 

contumacious conduct or misbehavior that 
obstructs the hearing.

(c) HVfnmrs n t  h r n n u n .  The ( appeal j  
uiliiiier sTiTHl request [the

o.\-
ngeiicvjf to make

available as a witness nt the hearing an employee 
requested by the complainant when he deter­
mines that the testimony of the employee is 
necessary. H r fiudijalso request the. appearance 
(>f /any other employee] whoso testimony he 

_£lcsiros to supplement, the information in tiie 
investigative file. The appeals] examiner shall 
give the complainant his reasons for the denial 
of a request for the. appearance of employees 
ns witnesses mid slinll insert_ t!k>m* rrn »̂»n  ̂ in 
the h i ••|il i f the bearing (The a:'eiicvj shall
make its cmplovees available as vvitne--.es at a 
hearing on u complaint when requested to do 
w, by i|,o£»p|iC"l ./examiner ami it i fnlmmi:.- 
irativelv practicable^ to comply with the ic­
on est When il i j j .it administratively practica­
ble] to comply with the request for a witness, 
the iigeiirv^shull provide an exphnnition to the

14a-

r



Attachment 1 l<> PPM Ltr. 713-17 (IS)

comp 1ai nt s 
cotnp 1 a in t s

complaint s

An employee, of an
he is -------
a witness.

complnint s

complaints

comp la in t s

comp1 a int s

complalnts

comp 1 a in t s

which do not bear directly 

which bear on — -------— -

Appeals) examiner If the explanation is m- 
ade<|iiate, lln* (uppenl-Joxummcr shall so advise 
the agency and reijiiesl it to make the employee 
wvuilahle as a witness at the hearing. If the 
cxnhination is ndemate. ihe f .pj»euK]examiner 

—rnTTIT- Insert it m the record of the hearing, 
provide u copy to the comphiinaiH, and make 
arrangements to secure testimony from the 
employee through n written interrogatory. 
fiOmphiyecs of the) n pci icy shall he in a duly 
status during the timcjthcy arjmnde available 

" „ s L i t  nesses." V̂it nesses shall he free from 
—restraint, interference, coercion, discrimination, 

or reprisal in presenting their testimony at the 
hearing or during the investigation under 
section 713.2lb j

([) I t r c o n l  o f  h t a r i m j .  The hearing shall be 
recorded and transcribed verbatim. All docu­
ments submitted to, ami accepted by, the 
/appeals]examiner at the hearing shall he made 

—  pari of the record of the hearing. If the agency 
submits a document that is accepted, it shall 
furnish a copy of the document to the com­
plainant. If the complainant submits a doeu- 
imiti t'mii •■> “ v ..................

• document available to the agency representa­
tive for reproduction.
(p) rimlinns. analysis, and rrcommeiulatioi.s. 

The fappcnl-j examiner shall transmit to the 
11 head of the agency or his designee U) the eoin-

(O) ,he findings and analysis of thoftppealgev-
-------^ n ^ ^ T ^ n n T T T T . e  matter ulmh gave

rise to the complaint and the general environ­
ment out of which the complaint arose, amt (3)
. litjtmimwiuiJnLik'viuau -rf 'J 0 x'
m,liner on the merits of the complaint, including 
recommended remedial action, "here appropri­
ate, with regard to the mutter which t-utf rise 
t0 the complaint and the general environment

_____ run of "h id  i I ho romjdjdnj_aroM*. Th.-J. | M»c a J
examiner shall notify the complainant of the 
date on which this was done. In addition, the 
/appeal'! examiner shall transmit, by separate

------- loner to the Director of K.pnd Ktnployn.ei.t
Opportunity, whatever findings and recommen­
dations be considers appropriate with respect 
conditions m the age, w-yf having no he.inngjmi 
tluTmal tor which gave use to the complaint or 

____  ̂ the general environment out of which the com­
plaint arose.

13a-



Attachment 1 to Fl’M t l r  . 713-17 ( lh >

within 1 BO calendar days 
it was tiled, including

complaints

after

See. 713.2HI Relationship to other agency 
appellate procedures. *->la> Kxcept as pro\ ided 
in paragraphs (1>) and (e) at tin-* section, "hen 
an employee*”  makes a written allegation of 
discrimination on grounds of race, color, leh- 
gion, sex, or national origin, in connection with 
an action that would otherwise he processed 
under —y.i grievance or appeals system*”  of the 
agcncyAt he agency may process the allegation 

"of discrimination under ->that system when 
the system*”  meets the principles and icquiic- 
menls in sections 713.212 through i 13.220 ami 
the head of the agency, or his designee, makes 
the decision of the agency on the issue of dis­
crimination. That decision on the i "o e  of dis­
crimination shall he incorporated m and become 
apart of the decision on the gi h-came or appeal.

•-F(b) An allegation of disenmmul uni made 
in connection with an appeal under stihpait II 
of part 771 of this chapter shall he processed 
under that subpart.

(c) Alt allegation of discrimination made in 
connection with a grievance under subpart ( 
of part 771 of this chapter shall be pioeOsscd 
under this part

.See. 713.220 Avoidance of delay, (a) The 
complaint shall he resolved promptly. In this

end, both the complainant and the agency 
shall proceed with the complaint without undue 
delay VQ thill the Comiilaiilt is rCs'd.veiJj^except 
in unusual circumstances, within M) ralemlai 
days after if-, receipt hy the Kqual hmplov- 
incnl Opportunity Ollicer, exclusive ojj time 
spent in the processing of the complaint by 
iho h 11pea 1 sj examiner under section 713.21K.

Vq^’hen the compluint has not been resolved 
within this limit, the eompluimmt may appeal 
to the Commission for a review of the reasons 
for the delay. Upon review of this appeal, the 
Commission may require the agency to lake 
special measures to ensure prompt process­
ing of the complaint or may accept the 
appeal for consideration under section 713.23»_J 

(b) The head of the agency or his designee 
may cancel a complaint if the complainant 
fails to prosecute the complaint without undue 
delay. However, instead of cancelling for failure 
to.prosecute, the complaint ">"y be adjudicated 
if sufficient information for that purpose is 
available.

16a -



<3.

Attachment 1 to FW Ltr. 713- 17 (17)

n
tc) The agency shill furnish the 

Commission monthly reports on all com­
plaints pending within the agency in a 
form specified by the Commission. U  an 
agency has not issued a final decision, 
and has not requested the Commission to 
supply a complaints examiner, within 75 
calendar days from the date a complaint, 
was filed, the Commission may require 
the agency to take special measures to 
ensure prompt processing of the complaint 
or may assume responsibility for pro­
cessing the complaint, including supply­
ing an investigator to conduct any 
necessary investigation on behalf of the 
agency. When the Commission supplies 
an investigator, the agency shall reim­
burse the Commission for all expenses 
incurred in connection with the invest i- 
gatiqp and shall notify the complainant 
in writing of the proposed disposition 
of the complaint no later than 15 calen­
dar days after its receipt of the in­
vest i gat i v e r epo r t.

(d) When the complaints examiner nas 
submitted a recommended decision finding 
discrimination and the agency has not 
issued a final decision within 1H0 cal­
endar days after the date the complaint 
was filed, the complaints examiner's 
recommended decision shall become a 
final decision binding on the agency 
30 calendar days after its submission to 
the agency. In such event, the agency 
shall so notify the complainant of the 
decision and furnish to him a copy of the 
findings, analysis, and recommended deci­
sion of the complaints examiner under 
section 713.218(g) and a copy of the 
hearing record and also shall notify him 
in writing of his right of appeal to the 
Commission and the time limits applicable 
thereto and of his right to file a civil 
action as described in section 713.281.

- 17a-



r

Attachment 1 to lW Ltr. 713-1? (18)

•0.

n

\

:

See. 713.‘221 Decision by head of agency 
or designee. In) Tin* head of ilie agency, or 
his designee, shall make the decision of the 
agency on a complaint based on information 
in the complaint lile. A person designated to 
make the decision for the head of the agency
shall be one w Ito is fair, impartial, and objective.

—>(b)(1) The decision of the agency shall 
' be in writing and shall be transmitted by letter 

to the complainant, and his representative.

When there has been no hearing, the—  
decision shall contain the specific 
reasons in detail for the agency's 
action, including any remedial action 
taken.

comp laint s

complaints

; r t v r» o c c { rs Hr* t‘

, whether or not there is a finding of—  
discrimination. When discrimination 
is found, the agency shall require 
remedial action to be taken In accord­
ance with section 713.771, shall review 
the matter giving rise to the complaint 
to determine whether disciplinary notion 
against alleged discriminatory official.. 
is appropriate, and shall record the basis 
for its decision to take, or not to tak‘ > 
disciplinary action hut this decision snail 
not be included in the complaint file.

(2) When there bus been a hearing an the 
complaint, the decision letter -dull transmit a 
eopv .,1 the findings, nmiiv-is, mid recommended 
derision of t lie fappealj rvumincr under seetion 
7i:i.'2IS(g) ami a copy of the healing record, 
'flic decision of the agency shall adopt, reject, 
or modify the dechion recommended by the

__£ippcalj examiner. If the decision is to tejint
or modifv the recommended decision, the do- 
,• jsi. 11 1 Id le r  shall >■•!_[■ ._r! h M.e fee a so n sj f.»e re-

jcctlon ii,i uiihra UoK.
(;}) When there lias been no hearing and no 

decision tinder section 713.217 (c ),  the decision 
letter shall set forth the findings, analysis;

, and decision of the head of the agency or his 

designee.
(c) The decision of the agency shall require 

any remedial action authorized by law deter­
mined to he necessary or desirablo to resolve 
tho issues of discrimination and to promote 
tl-.e policy of equal opportunity/ J

- 18a



Attachment 1 to FPM Ltr. 713-̂ 7 (19)

(d) The decision letter shall inform the com­
plainant of his right In appeal the decision of

, of his right to file a civil action______Ihe agency to the ('otimhssion fand of the time
in accordance with section 713.281, limit v.ithin which the ap|>cal may he sub-
and of the time limits applicable mittedj
thereto.

. Except as provided in section--
733.221(c), this file shall contain

Sec 71? 322 Complaint file. The agency 
shall establish a complaint file /containing ja ll  
cfooumonU pertinent to the complaint. The

(a) the notice of the Equal Employment 
Opportunity Counselor to the aggrieved 
person under section 713.213(a), (h)

(c) ________________________ __(d) --------------------
( e )

( f  ) ____________________________ '

< 6 >

( h )

( i )

Complaints

<J>

__. I~.v •• . r* ̂  .t>i U titc
written report of tho Equal Employment Op­
portunity Counselor under section 713.213 to 
the Equal Employment Opportunity Officer on- 
whatever precomplaint counseling efforts were 
tnado with rognrd to the complainnnt’s cnso, (1 b)j 
the complaint., fie'/ the investigative file, kdij if 

“Clio coirrpliontTfwithdrawn by the complumunt, 
a written statement of the complainant or lii.s 
representative to that effect, fie') if adjustment 
of tho complaint is arrived at under section 
713.217, the written record of the terms of the 
adjustment, £C)] if no adjustment of tho com­
plaint is arrived at under section 713.217, a
copy of tho letter notifying tho complainant of 
tho proposed disposition of the complaint and 
of his right to a hearing,1(g)) if decision is made
under section 713.217(c), u copy of the letter to 
tho complainant transmitting that deci- ion, Flij  

"if a hearing was IToTTj the record'of tlitriiearing, 
together with the pippoulj examiner's tindings, 
analysis, und recommended decision on the 
merits of the complaint, [(1 )) if the Director of 
Equ.H Employment Opportunity is not tho



o -

Attachment 1 to FPM Ltr. 713-17 (20)

(k)

, or a portion thereof, for 
reasons covered by section 
713.215;

designee, the recommendations, if unv, made by 
him to tin' lieml of tlio agency or Ins designee, 
and jjijif decision is inndo under section 7 13.221. 
h copy of the letter transmitting the derision 
of the hend of the ogeney or his designee. The 
complaint file slmll not contuin any dorument 
tliat has not been made available to the 
complainant or to bis designated physician 
under section 294.401 of this chapter.

A p p ia l  to the C o m m lm io n

Sec. 713.231 Entitlement, (a) Except a-s 
provided by paragraph (b) of this section, a 
complainant may appeal to the Commission tiie 
decision of the head of the agency, or his 
designee:

■\____ fl) 'l’o reject his com;ilnint fhi’cause (i 1 it
v.ns not timely tiled, or (n) it was not wi'hin 
the purview of the agency's regnlntionsT] or

(2) 'l'o cancel his complaint £ii] heoiuso of
the complainant’s failure to prosecute his 
complaint^ or (ii) because of the complainant's 
separation which is not related to his cornplninij; 
or J

(3) On the merits of the complaint, under 
section 713.217(c) or 713.221, but the decision 
does not resolve the complaint to ihe com­
plainant's satisfaction.

(b) A complainant may not appeal to the 
Commission under paragraph (a) of th:n 
flection when tho issue, of discrimination giving 
rise to the complaint i3 being considered, or 
bus been consideicd, in connection with any 
other appeal by the complainant to the Cont­
ra) anion.

Sec. 713.232 Where to appeal. The com­
plainant shall file hia appeal in writing, either 
personally or by mail, with the Hoard of 
Appeals and Review, Tl.S. Civil Servico Com­
mission, Washington, D.O. 2041-I.

Sec. 713.233 Timo limit, (a) Except as 
provided in paragraph (b) of this section, a 
complainant may li!e an uppeal at any time 
after receipt of his agency’s notice of final 
decision on his complaint hut not later than 
16 calendar days after receipt of that notice.

(b) The time limit in paragraph (a) of this 
section may ho extended in the discretion 
of the Hoard of Appeals and Review, upon a 
allowing by tho complainant that lie was not 
notified of the prescribed time limit atnl v as 
not otherwise a«aro of it or that circumstances 
beyond Ids control prevented him firm filing 
an appeal within the prescribed tune limit.

2 On-



Attachment 1 to FI’M Ltr. 713- ̂  (21)l

i

tif\
f*\
i

but shall contain a :.otice 
of the right to file a civil 
action in accordance with 
Section 713.232

and the complainant having bl',-n, '
formed by the agency of h s t M  
proceed under this subgart elects to 
proceed by appeal to the Commission,

on complaints

Sor. 71323'! Appellate procedures. The 
Hoard of Appeals mid lbv i>’W mIiiiII review the 
complaint tile end all relevnnt written rep­
resentations made to the bunt'd 1 he hoard max 
remand a complaint to the agency for further 
investigation or a reheating if it considers that 
uction nceessury or have additional investiga­
tion conducted by Commission personnel. This 
aubpiu t applies to any further investigation or 
reheating resulting from a remand from the 
hoard. There is no right to a hearing before the 
board The board shall issue a written decision 
setting forth its reasons for the derision and 
shall send copies thereof to the complainant, 
his designated representative, and the agency. 
When corrective action is ordered, the agency 
shall report promptly to the hoard that the 
corrective action has beer, taken The decision 
of the hoard is final./and there is no further
right to nppeaj

See. 71:1.2:’,.') Review by the Commis­
sioners. The Commissioners may, in their dis­
cretion, reopen and reconsider any previous 
decision when the partv requesting reopening 
submits written argument or evidence which 
tends to establish that:

0 )  Now and material evidence is available 
that v.us not readily available v. l.en the previous 
derision was issued;

(2) The previous decision involves an errone­
ous interpretation of law or regulation or a mis­
application of established policy; or

(3) The previous decision is of a precedential' 
nature involving a new or unrcvjcwcd poiie\ 
consideration that may have effects beyond the 
actual case at hand, or is otherwise of such an 
exceptional nature as to merit the personal 
attention of the Commissioners.

Sec. 713.23G Relationship to other appeals. 
When the basis of '.he complaint of discrimina­
tion because of race, color, religion, sex, or 
national origin involves an action which is 
oth( rwi'.e appeehilile to the ( iniunissjon^the
case, Including the is>we of discrimmation, ..... 
be processed under the regulations appropriate 
to that appeal when the complainant makes a 
timely appenl to the Commission in accordance 
with those regulations.

R e p o r t s  t o  t l ir  C o m m i s s i o n

Pec. 713 241 Reports to the Cojtimissior .̂ 
Kin'll iigencv slia.l report to the I ulli.ills,10 11  

information concerning precoiiipluiiit onmwlii.i: 
tatus and disposition of complaints 
subpnrl ut such linn’s and in such 
the Commission'nre ri!

- 2la-
TTT1 ■—«W»T



v) •

L —  UNITED STATES GOVERNNlI|>
"  Memorandum
Subj«cl! P r c c o m p la in t  C o u n s e l l in g

T APPENDIX II U.S. CIVIL SERVICE

and Discrimination Complaint

From;

To:
r

Activity During Fiscal  Year 1974 ;

Anthony Hudson, Director
Off ice  of Federal Equal Employment Opportunity

Irv ing Kator
Assistant Executive Director

:OMMISSlDN

Do.., i ju fe ? n 1 3
In Reply R.I.r To,

I
Your R.fe«t*c,

t .4
31

L

* ? « » £ " *  “ f 35t , l 9 ? T ( r U c i r Y e S e w W  Employment
" n u j ’e i i . w S l y  EEO o f f i c i a l s  fol lowing:

1, COUNSELING AND C0HP1AINT ACTIi T.r_Y

Number of Persons 
Counseled During 
the Period_______ _

31,484

Corrective Action 
Brought About 
After Counseling

11,080 (35.17.)

Number of Formal 
Complaints Fi led  
Afte r  Counseling

3,485 (10.97)
r .u ' * 1  /,oa cino^l nersons counseled during the period 

f i L r L i n L L n  ^ s  alleged on th.

s m i s g s t  teiigsa ' ~35itr ef a ^ -  i l

A similar breakdown o£ 3,435 discrimination complaints filed (10.5%) of 
thosfcounseled daring the period shoos the folloorn^basc^

Esiiainn f f
( 6 0 M  ( * %  <n.n) (6.37.) , (3.57.) (.77.)
2 . m w l  tlCT CASES RETORTED OTnsEP nv AGENCIES

Agencies submitted 2,650 disposition reports on eases --’ - i d  <*ntlng the 
period. Cases were closed i.n the following mar.

- Decision on the merit*
-  Withdrawn
- Rejection
- Cancelled

- 1410 or 537.
- 870 or 337. 

265 or 107.
-  105 or 47.

A finding of discrimination oas issued in 170 (or 77.) of eases closed

Kttp Fm Jm  in Y c .g F «> «"
Bonds

C r,C I O 7.i r.ii



by ft decision on the merits or withdrawal.
Some manner of corrective action was taken by agencies in 985 or 377.'of 
the cases that were closed. Disciplinary action was taken in 36 or /. 
of these cases.
Government wide processing time spent handling the 2,6j0 cases, 
including time spent holding a hearing, averaged 201 days; an increase 
of 23 days over the average processing time utilized during Fiscal Year
1973.

Agencies closed 735 more cases during Fiscal Year 1974 and spent an 
average of 23 days additional processing time.

-2 3a-

'll :--vr v



Memorandum A P P E ! i D I X  1 1 1

Subject: GoveTOrr.er.twide Equal Employment Opportunity
Counseling and Discrimination,Complaint Activity 
Fiscal Year 1972 thru Fiscal Year 1974 

Ffom: Anthony W. Hudson, Director
Office of Federal Equal Employment Opportunityr

To: Irving Kator
Assistant Executive Director

Dot., j;UG, 2 0 
In R.piy R«(*r To,

You, R.frrmici

L

Recurring reports received from agencies during the period July 1, 1971 
through June 30, 1974 (Fiscal Years 1972, 1973*and 1974) concerning 
Equal Employment Opportunity cases handled by EEO officials indicate the following:

Baseline
July 1, 1971 

thru
June 30, 1'97,2

July 1, 1972 
thru

June 30. 3973
July 1, 1973 

thru
June 30, 1974

Percent 
from 

Base 1ineNumber of Persons 16,883 
Counseled During 26,627 

(+587.) *
31,484
(+18%)*

+86%

Corrective Action 6,817 (407.) 
“ Brought About

After Counseling
12,594 (47.2%) 
(+77.) *

11,080 (35.1%) 
(-12%)* + 63%

Number of Formal 1,834 (11%) 
Complaints Filed 
After Counseling

2,743 (10.3%) 
(+50%)* 3,435 (10.9%) 

(+25%)* +87%

A breakdown of the persons counseled during each Fiscal Year disclosed that 
discrimination was.alleged in the following percentiles on the basis of:
Race/Color 707. (11,733) 64% (16,988) 57% (18,029 +54%
Religion 2.4% (420) 2.2% (599) 2.3% (713) +707.
Sex-Female 17% (2,833) 18% (4,819) 22% (6,925) + 140%
Sex-Male 4.6% (786) 5.37. (1,414) 11% (3,482) +343%
National Origin 6.37. (1,061) 1 1% (2,807) 6.8% (2,166) + 104%

Keep Freed c m  in Year

CO«w«i'ff crrvr ik.-oj.-vj*,
Future With US. Si 
-2^ a-

uvings Bonds
esc ro„M 631*ijfa r •■jf IW*"* — - r»,

1



I

Age

I

Baseline 
July 1, 1971 

thru
June 30, )972

July 1, 
thru 

Juno 30,
1972
1973

July 1, 1973 
thru

June 30, 1974

i
2 ? 

i
4

Percent
from

Baseline
N.A. N.A. 0.47. (130)

A similar breakdown of formal complaints filed after counseling during 
each Fiscal Year shows that discrimination alleged on the basis of:
Race/Color 68.47. (1,256) 617. (1,661) 60.3% (2,074) 657.
Religion 2.67. (49) 57. (137) 4.37. (149) 2047.
Sex-Female 167. (294) 207. (551) 21.77. (748) ] 547.

Sex-Hale 3.67. (67) 47. (123) 6.37. (217) 2247.
National Origin 9.17. (168) 107. (271) 9.57. (328) 957,

Age N.A. N.A. .77. (25) N.A.

* Percent of change over the previous Fiscal Year.

-25a-



APPENDIX IV—A

ATTACHMENT 2 OF BAR ANNUAL REPORT TO THE COMMISSIONERS FOR FY 1974

4

2 6a



27a

(

BOARD OF APPEALS ALD• REVIEW

ATTACHE." 2 - Workload Statistics
A. Cases Receiver and Processed:

I lcludes short suspension, probationer, salary retention, acceptable level of competence,
r •ermloyu.ct.t priority, examination rating, and Part 300 (CSC employment practices) appeal: o

■1



28a

board of appeal aitd r e/iew

ATT.'.C’EfE'T 2 - Workload Statistics
C. Statistics on EDO Appeals, FY 19 7̂

uls Received =>rl Closed Cut
FLO cooe^Ls cn hand from Vi 197> 15b
Anca'.r; Received £03

Cancelled by Employee 51
C'csri Q-xinc y*-ar 727

EEC appeals on hand end of Vi \97̂ led

>0'itior of Afpeals Closed Out
1. h if v.-.e iArer.cr Decision

lie e i scririn.nt ion fc.ir.d U27
lie < iscrir.i.'cttc: icuud (recamended

further corrective action) 12
Discr)r.lr.ition fcur.l U
Discuir Ir.asi.cn found (recor.. .ended -

fizrther cor~e. tivc action) U
Pcricnul reject:or of apeeal as untimely,

not r-ithin surviev 6U
Decline appeal as untimely

2. Reversed A;,ency Decision 
Discrimination foen.l
lie. t '..’ithin Fur/lev or Ur.timely 
T-..in;ro-ri-I e cancellation or rejection

3. P '.R re oiv.j:! ap cal to nrjency vappeal
< ■rs;erly r;je -led, further investigation

13
23
2
7

C2

C.t.'el A



2 9a

t (

BcaRD C? ArPEALS AI<L» REVIEW 

Statistic.'. cn EEC Appeals, FY 1S'7̂  (continued)
Issues involved in appeal 
Type cf discrimination alleged

'-•/C
ck 275

Cancastan 32
All others 12

C .trelic 2
T.,v i j : i lb
c t:. a

, L0l ..l Origin . . . .r ..i lean 5
I. - . 1 c a a - Ar.e r i c an 9
r  ,r.i'h surnar.e 20
LY . ot..rrs 25

l . Sex
’'.ale '  i, r/a

S  Other.....................................
Încludes â e, physic ii hand'* ..vp , 
ra.rit.ai rtat’v:, md \ nspecif icd )

6. Cc • 1: ’ • icr.s cf tvo cr rrorc t-. ces of User] nir aticn:r .., i i •. c., _ r 07
!-;eil- Lcr. and So.: - 2
M.t? r \-.l 0 -Igi" er.d Se" - 7
1’ • ’ . • 1 i ■ ic:i - U
;• a t i : .1 Crif is' - h*
r tlor. .1 Origin -  2

319

2 k

. 67

117

11

1 !



30a

(

BOARD OF APP1AI2 AIJD REVIEW

ATTAC’O^.T 2 - Workload Statistics

D. FEO Appeals statistics 3y Action and Allegation

a l l e t a t EON

r>i iuO - Religion Se'i Dot' r 
Crir.in Other * TOTAL.

6 J 7 0 n  —

203 . i/ Ill .77 7 rr<
__ —--------

'8 O
c. 1 0 J 1 3!;

-CjC It Z- . -

Disciplinary Action ................. 33 3 :3 U 1 5:*

FI
~
7 1C 6 1

Se:>iratlcn iAirir.g r*. >o.i«  ̂ • 

Ken -• g i £r'*r_cr.t> • • • • • • • « * » • * •
/-*% — j 5- lh h 2 '‘7 — 1

UU 10 25 16 2 ,7 1
*i iX— **£ • * • * • • • • •

Cw.il** •• • • • • • • • • * • • •

V.’— --ir. - Coalitions........ ..

Ferrer: -in.ee Evai.’.stion........ ..

ClassiOicaticn

5

-------- ---
0 3 2 0 10

2h l 12 3 1 lh

5 r-d 3 0 0 10 • |

•

13 1 20 k 0 »*3

57 C, 11 0 s 113

..*cr!t / sg i ‘’Tj1 ri r.ts . • • « • • • • • • • *

j • • • • • ♦ • • • * • * * • *

~ ; 6 25 >3 5 75

r , • i : 1 „ l.-f 10 170

1 | 
i

•n"v i 7,1

)

177 2 7
. *n-'<i

-  t o : ' l



APPENDIX IV-B

ATTACHMENT I OF BAR ANNUAL REPORT TO THE COMMISSIONERS FOR FY 1973



.A

■ • .... . , •Jt' Mtimtim lllMt* in mm 4* *»• ■

Attar!: r 1r"M

.Vpe of Apseai Pccc.

Uverse Action 1145

: c c u c t i 0 n - i r - Fc r c e C.O}

•ircri ■■ ires!or
v4K;0>t\J

605

oO

ctlrc ".cnt 2.30

cc<*r.’I-'.,: i; a! 
el' L-. i •■u : v.e

' i"

tlioj 2 1. ̂* ‘ *

Tula if. 2 > 37

1. Includes chert

WorkloadV71wl.vcd processed Keren ini;

- r ^ V

V "

Actual Work]oc8

F.e :T 197?''"ivc-d Processed P.er.oir.inr
Ac tv. a 1 Workload

rr 1972■ c c c x v ̂ n 0 c ̂ ? 5- ": PC~P' - f

127?

>22

929

97

132

1 1.1 *•>> )

331

3997

195

40

65

::(>

73

690

1335

877

677

47

'■J. ̂C. +J.

l*i-3

3* ̂

l6"i

o95

51

252

153

3-79

4101

443

123

153

9

-o

45

60

03l

1211

707

520

77

265

250

1133

735

494

92

250

153

239

3212

:poneiori, probationer, calory retention,
- --j. F -  a'** <■ ‘-O', examination rat;rrj. ar.d Fart yOO appeals (CSC employment'practices) .

SOAIO Or ArPKALS AND RLVJ'EU

-7o

*"~r

13

**1
I
It •<• - st

4

1

l i  i

1  1 J 
«* * ' -I

v: 4
u \ -O
r j

49

r%r\✓ ̂ V
». *

s-‘;4» a’
r‘: *3 •>' c v ̂4 ;

53
f, - 5j

926 *■ 1  
• ijf ' :4

?■ 1
r*

til

S
. II  ̂i r



-33a-

•5R.r"

*
Attachment 7c. Statistics on EBP Appeals, FY 1973

Appeals Received arid Closed-Out
EDO Appeals on hand from FY 1972 
Appeals Received

Cancelled by employee 
Closed curing year 

Appeals on Hand, End of FY 1973
Disposition or Appeals Closed Cut

1. Affirmed Agency Decision 
Ho discrimination found
Ho discrimination found (recommended 

further corrective action) 
Discrimination found 
Discrimination found (recommended 

further corrective action)
Regional rejection oi appeal as u..timely, 

not within purview 
Declined appeal as untimely

2. Reversed Agency Decision 
p is.cr iminnl ion found
Hot liithin Purview or Untimely 
L’.appri.pr into, cancellation cr rejection 
Inappropr iato procedure

3. D.-tR remanded appeal to agency (appeal 
improperly rejected, further investigation 
required, etc.)

4. Cancellation

BOARD OF APPEALS AND RE 1U

176
677

10
6S5
158

4'54
11o

1318

11
21
7
5

25
10

7.

J



Issues involved in appeal

iLa-r
i

Type of discrimination alleged
1. Racc/Color ...........

5 lack 
Caucasian 
All others

2. Religion .............Catholic 
Ji-uish 
Othe r

4. Sex
lie

5. Oth

336
34
29

2
21
3

1) A-i.r.;e..n
21 Dcxie.'.a-Ar.crican ■ 26
3) Spanish Surname 13
4) A31 otr.urs 2-4

7
84

(Includes ago, physical handicap, 
n.,vital status, and unspecified)

o. Ooi'Mnations of two cr rove types of discrimination:
1)
2)
3)
4)3)
4) 
7)3 i

.co a:ul So; - 
Rei igion and Sc.x - 2
inLi onnl Origin and Sex - 4 
Race and Religion - 4 
Race and National Origin - 4 
Religion and National Origin - 1 

e, Religion, and Sex - 3>\U
1' CCC j Keligion, Sex, and National Origin 3 

HOARD OF APPEALS /AND R£VTL/<

399

31

65

91

32



s ’

vn3Jl

Attachment Ic, Statistics on EEO Appeals, FY 1973 (continned)

rB. Number cf allegations of discrimination grouped according to the type ofaction
National

Race Religion Sea: Origin Other Total
Initial Appointment..... . . . .  10 2 1 13
Ton-Select .-Prcr.otion... 20 74 39 7 35Q
Non-Sclect.-Trainin~, t 6 T 55
Discin. Action...... 8 10 4 0tm 77
Renas lpnmcnt.......... 29 2 6 3 40
\ 1 *! n i  - c -  r] - 35 5 10 6 56
Detail..... .......... 5 2 2 9
Working C■;adii■fn-.-...... 16 J 3 22

Ap-eav.'n.i............ i •

P-' r f o r m. "valuation. 8 2 1 2 13
Classification......... 4 2 2 1 9

1 1 1 8 1 l 22

Other............... 69 7 42 15 9 142

Total............... 469 49 3 64 77 20 779

BC V.iD OF APPEALS REVIEW
1



APPENDIX IV-C

ATTACHMENT 1 OF BAR ANNUAL REPORT TO THE COMMISSIONERS FOR FY 1972

36a



V v ex f" t. m * '■■ ■ W ' "■• r
r - ~ -
Till ;£- »»'WV ^ «■«>

- v ■;i,U*£dliS uSî sA

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;A \<w v

,'>• it I;-. i 0.- ’• 1 o-.-cc.;-: ct

r : or. ••••k

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r
t* ->-Vji'.® 4i:ty

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v,(i. io5 . -it p r io v i-y , ci.v.oincti^n r - l i r - ,  ftud I'-vt 3C0 apr-cdsi.

)

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kioad ?

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r. a

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1

 
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sr-2

i
3cG 1211 1123

i

404 966

593 623 92 707 7c 6 17G 1 o 'Cl

t  “ • •. 1* \.. .c; 4(-o /.;*0 320 17 C •'17

150 127 <.r>CJ 77 C ,". 1 13 127

23 3 226 33 ; 263 r» ' 40 1 233J
I

\ »• 1 ; f 1 ' i » '•» V
- - -

| ^ 132 50 UO
l

.Oilvi » *
:-'.h 313 3 • ■ 2' v -4 *- 5 cl 4 06

IV1. 1. J 793") 2346 721
i
| 3261 
1

323 2 926
! ____
1 yj/°  
t

/ / /
: i-/
j- /
i 2 3 

2?0
i f . ,

476
ji. j

)

i
. 1|

£■■v1
1

J

?T*r J&m
3*- .t s#*

r<>?;• v.-s
C

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\,v?Rrl?:-g <
'7' •*fit
» > »;

v v«a
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■ ^  >t

f, ■'.£ <=

m
. I

• i

■ j

n
• . V'-St 

T • M.
4

3





i

F-

f’

iXT0 s>1

r.-'liM. lit* Lc. Statistics on F,."0 Appeals, FV 197:? {ron!-inu«d}

of p ■ rsen m l action involved in rppiialj wit": nu: ,1’Ci of

Fa •Liui\? of p roirotion i o '•
»\1't oval 29

f '.i • l* l* ‘ 02* apj: ->i.n t’.icn t /' /
0  ;- .hi-- j.j!) i:';C Ldenie

. . • * f* '■> »
r > t 1 <.* * L »’H during probationary period ; T;
Mi r y : . it

. ; I rr . "i> r.I J. • ia-n:; i *7
•• i/.;. L * 'n : i

‘ :. i v . »• .1 n

j L
:: i ' j 
a :; m\  ̂ i

ion oi position
U lI. of)

Ld
,r

p, ,ainui.";! : rating assigned
• ..'a: 4\ in:' (.

4*.)-* v.. i* ». : >
1,- .• 4 ’ C*. ■/ V
• »V. rr *• ■ c L Jit:'.’

v jigft
,V'"-

- *+. •«
- . . - ____Wii —  >h* £



( '

• l
^ ’n .v lis'y * •••Chairman

APPENDIX v

u wi 11 u i« ia i r . c. ivi i  *..i i<vic.t c o m m iGbiON

WAUUINOION. D C £0411*

JWi l u

1 icino rb i r_ A ;:»: t > <• r 
Ac Lir (i, A*i.r i .-.tor
Geeo/rau r>evv:< cca /.■. i1 nistractow 
Washington, D.C. 7.0103

Daev Hr. Sr <tiv.i<>n:

rhyn iu >u ,0 y ° ™  letter of Apv-.il 70, 1973, vhich poaod
ccrtr.Li afouL the proccai..a.I ri:\hri; ox t.iru r.llc/'tul
dascv itv.11 .;f. o;• y o/;f1clei 1 1; connection with x; ccrpicint filed under 
the Co.viit;r.ion'r. dincri'-j.action cc..,;.IaiuL procci-urf •>. VJo recentI;:a 
t.ulr. r.s a h;-My nciir aU vve. uvea. Gro t care ir. nc-c.acsnry to assure 
, fairns r::. to vll ;.'r:;o:v; Involved rv.d at the r.c r» to protect
the ml [..pricy oi the clit.criii.innf.ioa cc .plaint ’u.occdoxe.

’ 1>A»S /. U -

I a rLi\ !'■. ;> be.ale f.-.ctis rloi.t the r.c-,-•1
i n Okr.:i ev tlv: r:r ■ir. by v h'.eh the r.<;cueunciric the Ir" i., -, r;relet?era to r.-r. u.-.n re: tree fre n rey di.'.ctivft.hriLie.i i-.-.*:erl

tv: trey to aointuj. to -.r;. 
r ocaduvo. The praaeJu:

cl.Vr.c.1,-J' >. r:.rpoi?:»:vn uV

rn

:u.\; that all Ass parr.ovne. j. act loan 
. , ■ cel or, xeXlytfM, oar.,or origin. if; ir. irjorCa.it to ctrato teat it Is frets

bog ion in,-, to cod Cat Jr_r*«£: until x:;n?vr'*.) hroJcri.lv 
process. Thur. nlC.-ran;* fcl;a co.*.nlVi:?-.n 
herring, tivj h: itovr; j;- not r.Jvo.rr~.ry ’rut 
initial invent!irIcn Jnto i;an cc.-. ilx.infc. 
tu;r. a pari one or the Iflhir.l invert- i tion, that ir. t 
facta on \:Uich a dacicioa of tha agur-cy cr.u lx made.

j.a ace
Tt:a hairii.r.

* --- ' • *' * V yAlilUL JL.Ur.fic.uif.t too x.pnrrr' raid not a;;.-in it a pot idler oiiicial even 
thoujpi rn official may he n~.r;.d or implicated in the alleged 
discrriv. or.tory r.cf. if; fa the respenp. < L L1 fry of tie money to 
•root cut discri*-*i-.v:tion rad the co-.iplr.int procedure offers the 
cr;ncy one rvenue to d:> thin end to assure that the notion1) of 
Eupewir.ovo era free-, from dir.crinlnoticn cu they c fleer, employee a. 
Ti.e e.-v. o.lnfsirnt r.v. ' the agency are thus the only povtic-.s to the 
p r o n e a i  1 other per-onv, except there off ici'ij.:; vho have 
rerpee: il-tj ,.l;.lc.'i in process in.-; the co. ipia Int, are United to the 
roJe oi '’Itnerncs. Therefore. it uouid not: be prop*r to treat

• ’iniveiy u.. fie.’.a i as . v«.y" to i.v.i procaedinc,

;r t ivo. ; *'*
: to a
he t •
«.v _i t*tha rt►w (. »*•

tP

*4. '

- 41a -

>



I.

In lij'.ht oC the Corefcoin;;, Wc have ^'..ndeu l,.: low the answer; to your questions in seriatim:
1. Vir.y flic? aJic-K.inl iij scr h.-.inefnAy official cm-.pel the 

investigator lo take I'm ants of witnessesnamed by hire?
While the aliened d; seriniv. . :totricial cannot • co.u;-f.\ the. investi.;;.--r.r ,:o c. rtniem-nis of 
viL.v,;wnes, i he oii.tci.-w cun r.-.'-v-a the investigator 
of tlu* tnesr.̂.'i lie lw.?. :.a :u~. •in.ild he i nun: vi.cv/oci.
Hie Invest./pacer i utt v.l>c:.< '.«• ".srinc. j.v these
v;i Luc* sacs h ,\ e in£oi.r.L i on \ .v,mL to the issue 
ma! it yr. on this ir. in -; h : '■glares \;i tnesse;; 
to be inter vie-vuu. Tl.u 11. v - .t : ,'Ttor r  vequ vved 
to exercise neutral L.y not A ryuud vi-uvAy on 
ft*it}.rx.c:' J.i-.w oicu.r ; he c o o r  apency 

! cial;; Lu c.voryh.p or.; ha i.s-cljyuucnt o.f 
t»therjp" A&ctujii inforf/titioii.

2. Vr-y the al i.emd disty-h.-is.at.of.:'; that iu.vo access 
to the i.afc rjci. contsium a -..he < • ..-‘vaiit £Uu and 
xtp covpoi-.cut. tna ir»vast:A • r::f. c-:• y 1 :i).»•: >

r.-m.J do r.Ci'xi ij.r/;tv;o „*v of ff cin.fns '.111, £. CCC7 (. j ; ■ z j A
m. vo .'if:cess l:o t.it! '>: tho.cutitied t:o

or the ircur-tinacivc i l i a .  An stated above, the 
cccols;uh- is  in«t lisa «;yvv;y one". the ro)p of the 
'■J te-.ad dincvJ’Tinc.i-.Oiry o c i c i  ::i >« n»  a witness. Since 
*'" ■ i jo:. j a n  invar L .<.."‘.ca info the faces re -
\ ' 1 *• ' 1 * ' int: ; *. a ;',v 'c<'ive no asr’j.p j'.cti.*r> Live

the ii * V \ i * VO file 01 :t:ho jnv 3 r i.•/.tor j il Ti’Jjkin;; f.ir.̂o.-Ky repn j.Vv! Vi iv*; J tShow i o cf. i c in l ? v tJ r.cv»i*.: j
j J, j.’ll’- w.1 .. J.* **! 11«.cc rs 1.0i’i'Vv)*•’I: * o 'm I'M•* r c>-;yin? f.

e.vid -JiC/■» » ;* the : t fl O .'W/ ; nr \u*•;’i. x • < y.‘i;>. i' 11. /.; it.t '.IS. altavs C- /• i l l r.by r/Jic,■ ’ll cl if.era-L.'c" iJ- *! v». i11 *A': r 5j a.s net M'.u.': avr•. i. .s *
IC <!;.r;cJ »>linary acLion is 1 / *. V.

- 42a -
/ .* • *'*V"■ i ’ V" .*

ilUdlW



3

4

lcquire. th.it the official have nccenc to the entire 
file cr portions of it. in order to properly prepare 
liio defence and uouert hia righto under grievance 
and adverse action procedures.

3. May the agency excise netcvial fro*» the complaint 
file th.at the alleged di. criminr.tory official hr.3 
demonstrated is parser : 5\y detri mental cod is not 
relevant to the question of discrimination?
llo. The overriding cr >: id-•ratioi here is main- 
tniuin;- the integrity of t. dic-eri v’furitiovi 
co'.’plniuc process. Vhe euj*section that an
agency way excise ire tear/ L iron the file could 
lead to Che charge that c. : egu.tey is free to 
receive any material i va'.i y r.jpr.'ort t he 
complainant1 u allcg.v.tio., of dicer-t-inetlon.
Must; material in a cc.'f l •ii.t file, vaich directly 
implicate?.1 an official in discrirrlr.at.ciy conduct 
could ho eon3Creed r.e pevr-o;.-i).ly dc-.ri.; ratal to 
uo.ro degreo. Ko matter ho.? \ arsenal), y ortrvmentc.l, 
v:e ccauifo there mould ) •..a.:. ...’ant vbora the mate.r iel
ic relevant to the in we: of o ie.crir loafion that it 
should not: ho excited. The prlric.I:,;.i thrust: of the 
question, therefore, ic or of the ocy to
c?:cj..s?. : •••t.crrc .i vnich it. (•/•.?•:•>dei/s ii rnjr.v.Xit. Good 
iuvv sti fy.tlon technique r.I*.v.j>.d l.-.cp irralnvw't 
rr:-t:eri: 1 cut of file file. 7:\ r:..y re could
consider it hrprir'.v fro: r.o ? gewey to t•:.ler.o raterJe.l
on. an cr.-rrtn hatis rule'. it believea in irrelevant.
The Cf.-.'iUj r l:tt era:liner r.:ay take fueli action an the
metis:., of the cr: via In-.u):: cr rguucy or rny parson

"Ir .Sjv.1*1)V-! :.e . -.Iv.rtel ? • ■ • fii>. u. grievance to have
the vv.leri ’i deleted or to have the record corrected.

4. After c.-tt" e.v.rtiou of th invar tigr.tory file, may the 
alleg'd c’i.'.criTiv.tojry official ccr.yeJ. its reopening 
to rehut charger, ccnfrlsed therein, of vhj.ch he might 
not previously have. been t_wc.ro?
Ko. As \.e have. at air’d previously, the alleged 
dircvlvinntcry official is not a party to the. 
prone-'dine sad should net: have access to tie file.
As a vi'.nr.aT., he J ar- no right to compel the reopening 
of the investigative file.

43a -

I v *

t
WWCBJWf'



A
‘live real problcB. hon* 1:. a:i:;u *•left that a complete
invent j i-.atie.i it•u h.%.cn uvulc. t * ch uncover all
rclevent Lacts 1.: ari:<;; on th ci'. lulaint. 11 the
i-:eo Ol:i icer or otb.er r<** nry o 1lifrial cnarp.oj tilth
tillr. Toepunoi.oii>ty <!Mt : i : ■ i ‘t cii'.cft•: a
eft..uia t .-i.i alie J 0«1 V Vc C v; mIn' , off? e f'..1. \dilcii
arc cent's'.'.v. •4U J . it i i. in n* " * rt < ’*" ‘ report ..re
velevent to C l IL, .i ;•itu o •: r h •••' >’ = in>., nut that
no O f f  o  i. t u n  i.<• »*J V r.r. PL‘ovi.-.l*:J rc • h'- ofiici■ :1 to
provi.de hi:; vc v i  on O i! t h e . 1 v.'« - i. . , L iK . l t  *10 should
request j .. •iif.iiJ hivc.'i. • ‘ ion covcvi:t£
the si;' . L\k _n.j r.a. if is requested
on t cor..);. 0»r* i. J l ° C('...aJ <‘r.-.'wuv.c oiij.u
ciXc ' T rev.V-.ft <n . car:: fa f! - ' • / XO/ J.Cell
l‘j). i*c; *:or call -1 j. : e «11 s ■: r i.'Img Tory oil ;c ie 1

C /i 2 .

f i A"C ipli -*y r o’.j cm. iviy tir' »;*pr ‘»cy i:r'-he np.'.lust
m  c. i nye 1 J i •cU .’i u: fie .'o >1.".• L o r n l I :;-eo
c! X f. mJ. A ' . '.i. ■■» .* s' # (J;. / C Jr . i ,  rot m . ; ;; \;>.tbout
i • u »*;«•ncLr.r ti o;t 1*. v r.Vi*’i cr i .. i * w .w i:. / • .• C iC V .i ••J. CO n -

ta:» •J. in f ; l ; c c i ■. :\Il x j i  ' l }  \ . . rv.d 1cft V (. >.!. r.tel.y
C ( • ' r *. ■»r  r  ■ t.i j, t O J! .:L 1 .r, r ; c  v. I '- . '-  '-J' '1
if t " f . s ' ■ * -y c: 1v  r rvGcn of: : JO .' / ) i l  c J f r . , -

dive f> 3 j :. f y .  n cotioc* ‘ . •.n,>u '/ . c  e ’ . j a.ire
of ».cv recufifty v.i,soTh', it ei •• rcr-punr. ileii.i.t y to
nrn;-.-’. fchv.t. pro;.:.- re.v.vjiroo r.ic then to protect the 
pccnvJlty of kb: Infov.-rtticn.. TI: vrv/.ore, *. moloye.er., 
inrji. ".eft the oo . ; L'.;'.nt s.n:' ; 1 . ".'.'id <1 »rc:r i>" tory
•of.1.':*../, i, v'.*o <.* < v.t. yo f.v.ch i t . i o n  ctmJC. ha
sul'jvrt to appro,.viaftr: oiscJ j t l.r. *./ action.
IThilo the ' p. ft icy has control over the. official complaint 
file, it is to provide copy to tiic complainant
for «»!•■« in co.n actio.i pt<'c;.:.; lrij’ the complaint. Our
repnlationr. <■■> not rn.-c.H to ray rm-tricticn on the me 
of t.hv file by t:i:_ c-•.• ;>'ei.vrnt ..an vc do not: believe 
it V' '.:1 he • i l.-t.. *o do ..o. jar* ansvjrr here is
to t!r i; 1r.ic v • !' t.aJ t vvoeur. Tnrtei ie.l is not
nit'? ! info -. r: ecru in ..... Ilret place. Of course,
1 1 t.i ; 1,'•:• *••..it \ i ?.'.**• f 1 1 » In a osminev deliberately
<?;*:? * * A ft) '..i'.: •>. i. ,■ . or to briu;*, that.
c.‘.»lc . .. M.fo fic’ici'ie, tnea <’• L:.cipVinary action i»y t'ne 
agency muy he in oic’cr.

44a



6. Does t.li * n 1 lcged dir* criminatory official have flit* 
right to have u representative at an LEO hearing?
Yes. The alleged discriminatory official, like all 
other witnesses, has the right to hat.** a. representative 
at an EDO hearing to advise*, hiui regarding his answers.

?. If the al lcged discriminatory official does have the
' f to have r. icjiresenL.-1 ice present at the hearing, 
the representative cx.'.v.fne and cross -examine witnesses?

rip.lmay
Mo. The re presentative of the alleged direr minatory 
official, or of other witnesses, door nut have the 
right to examine and cro.~.s-0/.a.:>ino witnesses'and would 
he permitted at the hearing only during the time that 
the alleged discriminatory official i«: testifying. Only 
the complaints examiner end the. representatives of the 
parties in the case may er.rmne and cross-A>.<-.-\inc witnesses, 
hs-caver, if the agency is convinced I:h.'.t lh_ra lias been no 
disormaiati.oa in the mutter, tl.cn t.i:o agency representative 
would very likely exsiriiu*. and cross ~n VAfuina on the cau:e 
points as would counsel for the. alleged discriminatory 
official.

«. a *■• * «. & *V

l!. Mona the- oliege i disci iriin? 1 ory official have an absolute 
right to compel the faking of his testimony at: an EEC) 
hearing?
Mo. The alleg'd dlscrimin'tory official docs not have 
an Absolute right to appear us a witness at the hearing 
a 1 1 hoo gn ft: is difficult t.o conceive of a situation- in 
voich Iso. v-.iuld not be called. The alleged discriminatory 
official would he expected to have personal Knowledge of 
facts hearing on the alleged disc::ruination and his 
tent!;.any would bo necessary. Therefore, it is normally 
expected that the alleged direr f: linni ory official would 
he called In testify by eitlr-.r the complainant or the 
Agency, and if rot tĥ n, by the ̂complaints examiner* 
Assigned to conduct the hearing in t.lij case. However, 
there may he an unusual situation wherein the testimony 
of the Alleged disc rim in. Lory official given to the. 
iri vc s tigs tor is so complete that nothing further from 
him Is neceunary at the hearing. In this situation, it 
won!<1 not be nucesuary to call bin and he could not 
require that he Attend the hearing as n witness.

#V

r

be hope this information is helpful. If you havelof );ncw . any further questions,

Sincerely yours,
JPyxi-gt \ 9 . .  L fvxui /rlsn̂ v

/c/ kobert K. Hampton *
'•bb - -N ■*** TV*. v>,- 4 5a • * • • * -;v _w * •/ * • .* «.?-*•.•



APPENDIX VI

r

UNITED STATES CIVIL SERVICE COMMISSION
APPEALS REVIEW ROARI) 
Washington, D. C. 20415

D E C I S I O N

IN THE MATTER OF
) . •)
) TYPE CASE: Dir.cr i mi nc.ti on Rased 
) • On Hacc

-M U g l-JCIES, JK»_______________________)

. '• - f/W .

■ i’
♦ r » v “ v

• Bcfoi'c: Noel, Bcchtold and McDonald, 
Members

INTRODUCTION

Board

*< '/ W* »K-Av'-
The complainant appealed from the March 19, 1974, decision by the Director 
"of Equal Employment Oppoitunity, Department of the Army, which found that 
the complainant had not been discriminated against becau.se of his race in 
connection with his non-selection for promotion to a GS-12 Architect posi­
tion. The agency decision further found that the complainant, naa oecn 
discriminated against because of his race in his employment situation at 
the Mobile District, Corps of Engineers*

STATEMEirr OF THE CASF.
The complainant, a Blade male, is employed by the Mobile District, Corps 
of Engineers, in the position of Architect, GS-ll.
On July 12, 1972, the complainant contacted an Equal Employment Opportunity 
Counselor and .indicated his desire to file a discrimination complaint con­
cerning the selection of another employee for a vacant G3-12 Architect’s 
position, h’o informal resolution of the matter was reached and complainant 
filed a formal complaint of discrimination on September 21, 1972, alleging 
that racial discrimination had occured in the selection of another employee 
for the vacancy in question.

C1
is

I

.

i

An investigation was conducted and an investigative report submitted on 
January 26, 1973. Based on the investigative report, a proposed disposi­
tion of the complaint was issued by the agency on November 2 , 1 9 7 3, deny­
ing the complaint of discrimination. The complainant then requested a 
hearing in coiinccticn with his complaint, which was conducted on Novem­
ber 30, 1973* In his report, the Complaint's Examiner recommended that a



finding be made bh.it the allegation of discrimination based on race ».v: not supported by the evidence.

AGENCY DICC TGI Cl I
rinal anency decision, issued on March 19, 1974, held that the evi­

dence of record did not substantiate complainant's alienation of racial 
•discrimination in regard to his non-selection for promotion to the posi­
tion of Architect, GS-12. However, the agency found that the Mobile Dis­
trict, Corps of Engineers had failed to implement the agency's affimativc 
Ixiual Employment Opportunity program; that the ccmoloinant had not been 
provided the opportunity for maximum utilisation of his education and 
trainLne; and that the complainant had been subjected to a climate of 
racial prejudice in the work environment at. the Mobile District. The 
agency ;dso found that complainant's promotional opportunities had been 
adversely affected and that except for his race, he mi pit have progressed 
under the Department's Career Program to the CG- 1 2  level in the Mobile 
District or elsewhere in the Corps of Engineers. It was also the agency 
decision that complainant was otherwise discriminated against an his em­
ployment situation. Eased on its finclines, the agency directed that t!ic 
complainant be raven continuing priority consideration for available G3-12 
■Vacancies in the Mobile District, Corps of Engineers, for which lie is 
.qualified, until complainant is selected for promotion or until he de­clines a bona fide offer.

) iK P i i j il KN T A T T CM 3 TO THE APPKAT.3 PJT/TEV,’ POAP.D

In Ins letter of appeal to the Board dated April 13, 1 9 7 the complainant 
expressed dissatisfaction with the agency's decision and requested a re­
view of his case. Specifically, the complainant questioned "tlie-thorough­
ness Ox the investigative findings of the Investigator assigned to his 
case, and he questioned the appraisals given the three candidates for the 
Gs-IE position in question. Complainant also refers to a further net of 
alleged discrimination occurring within the last five months, not pre­
viously made a part of his complaint of discrimination.

ANALYSTS AND FINDINGS
The Board lias considered the complainant 
entire record established in his case. A: allegations in light of the
Board finds that the complainant's allegation of raciala result of its review, the

• -----«---- —  w.scrimlnation inconnection with his non-selection for promotion to the specific G3-12 
Architect position is unsupported by the evidence of record.
Complainant's main argument throughout the complaint of discrimination has 
been that lie was the best qualified of the three candidates for the position

-47a-

■* •***.

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• * s • •"% . . ,v, • ■ • • v -■•V**, v* \‘* 4 .

I T



3n question. In thin connection he quentionn the appraisals civ on to the 
other candidates by their supervisor, which appraisals formed the basin 
for the selecting official's final choice for the position.
The Board finds no evidence, other than the ’complainant'n unsupported al­
legations , that the appraisals in question were the result of racial bias 
on the part of the official who completed those appraisals, and that said 
official was not listed as an alleged discriminating ’parly. The record 
reflects that each of the candidates for the position in question was 
rated "Highly Qualified" for the position and the choice of any one of 
the candidates would have been justifiable. Moreover, the record indi­
cates that the selecting official (who is the aliened discriminating 
party) based his selection upon his intimate acquaintance with the work, 
experience and knowledges of all of the candidates, not just on the pro­
motion appraisals.
In situations where the available candidates are substantially equally 
qualified for a position, the selecting official has the discretion to 
choose who candidate whom he believes can best perform the duties of the 
position. In this case, there is no evidence that the selecting official': 
evaluation of the candidates and his subsequent selection for the position 
were based in any way upon any consideration of the candidates' races.
-While"there is evidence of past inequality of treatment of the complainant 
which, as determined by the agency Director of Equal Employment Opportunity 
indicates that the complainant was not given equal training and opportunity 
for advancement., the evidence strongly indicates that ony r.horgc of d’s- 
criminaticn in these practices would be laid against the prior Section 
Chief rather than the supervisor named by the complainant. In any event, 
the Board finds insufficient objective evidence to show that the failure 
to select the complainant for the vacant GS-12 position was because of 
hie race.
The complainant noted that copies of employee appraisals completed on 
June 1, 1972, v.'crc not included in the investigative file, aid lie has 
requested that the Board review the appraisals and the personnel files 
of the three candidates for the position in question in order to make a 
decision on the relative qualifications of these candidates. The com­
plainant has charged that the personnel files of the candidates will not 
substantiate the appraisals in question.
Pith regard to the exclusion of the appraisals from the investigative re­
port, the Board notes that employee appraisals are considered to be con­
fidential to the individual involved and that there is considerable 
latitude under Civil Service Commission regulations regarding the inclu­
sion of such appraisals in the investigative report. The Board also note: 
that employee appraisals arc highly subjective in nature and arc be­
tween the employee, his supervisor, and agency management. Finally, ns 
noted above, the selecting official indicated, in )iis justificationfor

.-48a-

«— • /

, K'-

1*

. V <v *> ’ i'r X .- > ■ "v- <1 r • > t - -

T



the -election he made that he used not, only the employeo appraisal tout also 
S o  ^ r l l e d r . c  of the abilities and performance o the car^dates^ 
vitli all three of whom lie had a lone and close working lelatjc..

• s a s ? ;

^ . s nxl!Sl'“ «S? I c c o r d i ^ r t h ^ ^ m a ^ : " ^  X k m i t c r  Xor . 
review by the Board in its adjudication of this appeal.
The Hoard notes that while the agency found no .evidence of 
tion in complainant’s non-selection lor promotion to tne
thi- instance, the agency did recommend corrective action be tJce.i m  tic
conrplairiaj^^s * ease b S s c /o n  a fin d in g th a t  theEngineers, had failed to implement the agency’s affirmati\e l.c>al n.̂ pl / 
ment Opportunity program. The corrective action was to ^ e  the form of 
tontinuinr priority consideration to the complainant lor C.>-1- Vucancxo ,.
e S a S  vas promoted to a G3-12 Architect’s position on May 5, 19 * 
according to information furnished the Hoard and thus, the prion y 
sidcratiou recommendation would now be moot.)

ti.

V>/

« V« »' *

DECinim
rurouciut to the foregoing, the decision 
Army in this case dated March 19» 197A,

jsueu by the Department of the 
3 hereby affirmed.

Civil Service regulations provide that the decision of the Hoard is final 
and that there is no further right of administrative appeal. awe ^ 
i)ic complainant is not satisfied with this decision, he is t-ntxtlc-u, unecr
section 717(C) or the Civil ltlshL Act ot 1964. «. ™^^^°coirt'uithin 3972. to file acivil action in an appropriate U.o. botnet Court wit
thirty (30)calendar days of his receipt of this decision.

For the Commissioners: ■

I.--*

I t -V v

ld / f (1i'.i -v J< -
VJilliam P. Berzak 
Chairman

October 4, 197A

-49a-

t. --

I

yivivvDl,D;v--A-'-v-



APPENDIX VII
Attachment 5 to FPM Ltr. 713-17

.Subject: NOTICE OF PROPOSED DISPOSITION OF DISCRIMINATION COMPLAINT

Irom: EEO Officer DATE:

Complainant

The purpose of this notice is to inform you of the proposed 
disposition of your discrimination complaint and your rights 
if you are dissatisfied with the proposed disposition.

o PROPOSED DISPOSITION

(Stale the specific proposed disposition of the 
comp1 aini)

o RIGHT OF HEARING

If you are dissatisfied with the proposed dis­
position, you ;n.iy request a hearing and decision 
by the agency head or his designee, if YOU NOTIFY 
THE AGENCY WITHIN 15 CALENDAR DAYS OF RECEIPT OF 
1HE HOI ICE that you desire a hearing.

o RIGHT OF DECISION WITHOUT A HEARING

If you are dissatisfied with the proposed dis­
position, you may request a decision by the head 
of tlie agency or his designee without a hearing.

If you fail to notify the agency of your wishes within the 15 
day period, the EEO Officer may adopt as the agency's final 
decision the proposed disposition shown above and will so 
notify you in writing. Upon receipt of notification you may 
appeal to the Civil Service Commission within 15 calendar days 
or file a civil.action in a Federal District Court within 30 
days.

If you appeal to the Coramission, you may still file a civil 
action within .50 days of receipt of the Commission decision 
or wttnin 180 days of your appeal to the Commission if you 
have not received a final decision from the Commission.

Note* to Agency:

A copy of the notice as given to the complainant should be 
filed by the agency in the complaint file.



—• • ivn ww**- »■ »>«t« # • n\A«LWUn L
tC rltc irv*  C 1, U)72]

APPENDIX VIII — A ll tinrMU *r% c>i«rKMr 0 *y t
— Complex + r \ rn#v 1*1# civil Action 
wlttun 30 day* of <1 ^ . 0 1 0 0  by 
Commruion or UiO dry* »f r-> 
ciuC f»*m

— Notu.«# o1 to fil* formal
comprint rrvutt t>* £tv«n »ft*<2l day*

■51a-

V . - ' t . ' vv' ./<, .A' '''V'vrrCV.'V^'^Vv*’VV** - V * ?.v VN»- -J*?/y!—.!> V .



PROCEDURES FOR PROCESS INC COUP1.A I NTS OF )) 1 SCI; I MI NAT I ON EASED ON 
RACK, ciol.Ult, RELIGION, SEX, OR NATIONAL OKI GIN

1. KMPlJOYKE contacts EEO COUNSELOR within 30 calendar days o£ allege 
discriminatory action. COUNSELOR lias 21 calendar days to attempt 
informal resolution.

If final counseling interview is not completed in 21 days, COUNSELOR 
must on 21st day give written notice of right to file complaint any 
time up to 15 calendar days after final interview.

2. If informal resolution fails, EMPLOYEE may file formal complaint with 
DIRECTOR OF EEO, AGENCY HEAD, INSTALLATION HEAD, EEO OFFICER, FWPC 
within 15 calendar days of final interview with COUNSELOR.

3. EEO OFFICER advises DIRECTOR OF ELO, who assigns INVESTIGATOR from 
jurisdiction of agency other than that in which complaint arose.

A. Investigation conducted; COMPLAINANT given copy of investigative file. 
EEO OFFICER provides opportunity for informal adjustment.

5. If adjustment not made, EEO OFFICER notifies COMPLAINANT in writing 
(i) proposed disposition, (2) right to hearing and decision by 
AGENCY HEAD, and (3) of right to decision by AGENCY HEAD without a 
hearing.

6. If COMPLAINANT does not reply within 15 calendar days, EEO OFFICER 
may adopt proposed disposition as decision of the agency, providing 
he has been delegated this authority'. Otherwise, complaint is 
forwarded to AGENCY HEAD (or his designee) for agency decision.
Upon receipt of decision, EMPLOYEE may appeal this decision or any 
final decision within 15 days to CSC or may file a civil action
in an appropriate U.S. District Court within 30 days.

7. If COMPLAINANT asks for hearing, agency requests CSC to assign 
complaints EXAMINER, who must be from agency other titan that in 
which complaint arose.

8. COMPLAINTS EXAMINER reviews file; remands complaint to agency if 
further investigation necessary; schedules and conducts hearing.

9. Hearing recorded and transcribed verbatim. COMPLAINTS EXAMINER 
makes findings, analysis, and recommended decision; forwards 
these and complaint file to the AGENCY HEAD (or his designee).

10. HEAD OF AGENCY (or his designee) makes agency decision, based on file, 
giving complainant copy of COMPLAINTS LX.;tMlNER s report. Must give 
specific reasons for rejection or modification of (COMPLAINIS EXAMINER s 
recommended decision in detail).

(over)

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pausest’*

t

i



11.

NOTE

COMPLAINANT has right to appeal 
within 13 calendar days.

to CSC* s BOARD OF APPEALS AND REVIEW

1. COMPLAINANT has right to file civil action in an appropriate
U.S. District Court:
a. within 30 calendar days of his receipt of 

notice of. final agency action on complaint
b. after 180 calendar days from date of filing 

a complaint with agency if there lias been 
no decision

c. within 30 calendar days of his receipt of 
notice of final action taken by CSC on 
complaint, or

d after 180 calendar days from dute of filing 
an appeal with CSC if no CSC decision

Filing of a civil action does not end agency processing of a 
complaint or CSC d<?.ci.sion

11 The agency shall furnish CSC monthly reports on all complaints 
pending within the agency. If an agency has not issued a 
decision or requested CSC to supply a complaints examiner 
within 73 calendar days of the date a complaint was filed, CSC 
may require special action or assume responsibility for
c ornp 1 a i n t.

pyifctr
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• -V- ■* '

H



_...__l i ■ ...l . .. —|«.W rt4.ii< '(

on How the Discrimination 
Complaints System Works

" N o  more serious task challenges our Nation 4
domestically than the achievement of equality 
of opportunity for all our citi7cns in e'ery 
aspect of their lives regardless of their race, 
color, religion, national origin, or sex.

Richard M. Nixon 
P r e s i d e n t  o f  th e  U n i t e d  S ta tes

i

*
Government's program for assuring equal employ­

ment opportunity outlaws bias in any personnel action 
in the Federal civil service. Yet, inevitably, there will 

t be times when some employees will experience situa- j ^
i tions in which they will believe they bavc been dis-
! criminated against because of race, color, religion, sex,
i or national origin. So the Civil Service Commission
, has developed a system for assuring that employee
; complaints of discrimination ate given fair and fast

consideration. This leaflet explains the w hy, what, how, 

j and when of that system.

i},.. T ’SV'r .v-?-
--- ------ -----------—

complaint system
In order to help eliminate b.uriers to equality of 

opportunity in all aspects of Federal employment, an 
improved complaint system has been established for 
those who feel they have been discriminated against 
because of race, color, religion, sex, or national origin. 
The procedures place strong emphasis on reaching 

j n  f o r  m a t  settlements of complaints.
The complaint system within each agency consists 

of the following:

Equal Employment Opportunity Counselors 
for informal settlement of problems

Equal Employment Opportunity Officers— for 

formal complaints
The Director of EEO — responsible to the agency 

head

Any employee who feels that he or she has been 
discriminated against on the basis of race, color, re 
hgion, sex, or national origin must fust discuss the 
problem with a trained Equal Employment Opportu­
nity Counselor before making a formal complaint. 
Agencies are required to designate I EO Counselors and 
make them accessible to employees. I"hc Equal Employ­
ment Opportunity Counselor operates independently 
from the formal complaint system, although he main­
tains a line of communication with management and 
the Equal Employment Opportunity Officer. It is ex­
pected that problems will he solved more readily by 
avoiding lengthy formal procedures as much as 

possible.



■ ' ' "V:

The Counselor will
® Listen sympathetically and help you specifically 

identify your problem.
• Study your case impartially and objectively, 

advising you of your rights.
• Answer your questions honestly.
• Discuss your problem with supervisors or asso­

ciates when it is advisable and if it is agreeable 
with you to do so.

• Attempt to resolve your problem informally.

The LEO Counselor reports regularly to the Equal 
Employment Opportunity Officer about his activities, 
but he will use your name only if he has your permis­
sion. When appropriate, he will make rccommenda-

err -------D

' y ■vwt*-,vr.C: - • ,V

tions for action to the EEO Officer where his involve­
ment is necessary to reach a solution to the problem.

You must contact the EEO Counselor within JO 
calendar days of the date of the incident that gave rise 
to your complaint or, if it is a personnel action, within 
30 calendar days of its effective date.

Your EEQ Counselor will do his utmost to find a 
sound and acceptable solution to your problem. He has 
21 calendar days from the time you report your prob­
lem to attempt an informal settlement. If at the end of 
this time the problem is not resolved, he will advise 
you of your right to file a formal complaint with the 
EEO Olficer or w ith certain other officials of the agency. 
You have the right to be represented at any stage in 
the presentation of a complaint, including the counsel-

If you decide to make a formal complaint, you have 
13 calendar days from the date of your last interview 
with the EEO Counselor in which to file it in writing 
with your EEO Officer, or other designated official of 
the agency.

The complaint must be specific and must be limited 
to the matters discussed with the EEO Counselor 

Once a formal complaint is accepted, the EEO Officer 
advises the Director of Equal Employment Opportu­
nity, who assigns someone from another part of your 
agency to make an independent investigation into the

v

\ . 
i

t 9

aCJ*-



„  ,r. . tr.Mh.w ti ^ i i>.r>m i l «  F— .. — -•  — ....---------- v. ..................... 4

matter. Tills major improvement.is the result of con­
tinuing effort to bring about complete fairness in the 
complaints system.

An impartial investigation is made You arc given 
a copy of the investigative file, an.I the Equal Employ- 
mem Opportunity Officer again provides an oppor­
tunity for an informal adjustment.

You arc then notified of the proposed disposition 
of your complaint. If you arc not satisfied, you ha\c 
tlic right to leoiicst a hearing, with subsequent decision 
by the head of your agency or his designee, or you may 
request such a decision without a hearing.

If you do not ask for either one within I 5 calendar 
days, the 1 1.0 Officer or other ollicia! delegated the 
authority may adopt the proposed decision as the de­
cision of the agent y.

If you request a hearing, the agency asks the Civil 
Service Commission to assign the case to an EEO 
Complaints kxamincr from another agency (most 
likely the Commission).

The Complaints Examiner reviews the file and has 
the opportunity to request further investigation and 
details. He schedules and conducts a hearing. The hear­
ing is recorded and transcribed verbatim. The Com 
plaints Examiner makes findings, an analysis, and a 
recommended decision. This information is forwarded 
along with the complaint file to the agency head or his 
designee, who is usually the Director of Equal Employ­
ment Opportunity.

The agency head or his designee then makes the 
final decision, based on the file, giving you, the com­
plainant, a copy of the Complaints Examiner’s report. 
If the agency head rejects or modifies the Complaints 
Examiner’s recommended decision, he must give 
reasons for doing so.

appeal or 
civil action

If you arc dissatisfied w ith the agency's decision on 
your complaint, you have a right to file an appeal with 
the Civil Service Commission's Board of Appeals and

Review (within 15 days) or you may file a civil action 
in a US. District Court (within 30 days). If you 
appeal to the Board of Appeals and Review and arc 
dissatisfied with the Board's decision on your appeal, 
you may still file a civil action (within 30 days of 
receiving the Board's decision).

You also have the right to file a civil action if you 
do not receive an agency decision within 180 days 
after you file a formal complaint, or if you do not 
receive a decision from the Board of Appeals and 
Review within 180 days after you file an appeal.

summary
The United States Government pledges equality of 

opportunity to all its employees. This commitment has 
been strengthened by action programs to meet the goal 
of equal op|x>rtunity in all aspects of Federal employ­
ment Progress toward equal opportunity has been 
made in recent years. You, the Federal employee, are 
invited to meet the exciting challenge of widely ex­
panding opportunities. Your abilities, your ideas, your 
commitment, can make true equality of opportunity a 
reality.

information 
in this 
leaflet

The preceding information is general in nature. If 
more specific information is needed, your EEO Coun­
selor or EEO Officer will assist you in obtaining it.

U.S. CIVIL SERVICE COMMISSION 
Washington, D.C.

FED FACTS 10 
October 1973

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