McCain v Abel Reply Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 74-1929

NELL PENDLETON, et al.,
Plaintiffs-Appellants,

v.
JAMES SCHLESINGER, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the District of Columbia

BRIEF FOR APPELLANTS

RODERIC V.O. BOGGS 
Washington Lawyers' Committee 

for Civil Rights Under Law 
733 Fifteenth Street, N.W. 
Washington, D.C. 20005

Of Counsel:
DAVID J. CYNAMON
Covington & Burling
888 Sixteenth Street, N.W.
Washington, D.C. 20006 Attorney for Appellants



i

TABLE OF AUTHORITIES...............................  iii
STATEMENT OF ISSUES PRESENTED FOR REVIEW ..........  2
REFERENCES TO PARTIES AND RULINGS................... 2
STATUTE INVOLVED ...................................  3
STATEMENT OF THE CASE .............................  3

A. The Proceedings Below ..................... 3
B. Statement of F a c t s ....................... 5

ARGUMENT............................................ 13
I. Introduction and Summary of Argument. . . .  13

II. Title VII Entitles Federal Employees to the 
Same Rights to Trials De Novo and Class 
Actions in the District Courts As It Accords 
to Non-Government Employees ..............  18

A. The Provisions of Title VII, As Amended,
Grant Federal Employees the Right to 
Bring Civil Actions in the Same Manner
as Private Employees................... 20

B. The Legislative History of the 1972
Amendment to Title VII Supports the 
Conclusion That the Rights of Federal 
Employees are Equal to Those of Private 
Employees.............................  22

C. The Court Below Incorrectly Read the
Legislative History and Administrative 
Scheme Established by the 1972 Act. . . 31

D. Sound Case Law Supports the Right of 
Federal Employees to Maintain Trials
De Novo and Class Actions Under Title VII 36

E. Sound Judicial Policy Supports the Right 
of Federal Employees to Maintain Trials
De Novo and Class Actions Under Title VII 43

TABLE OF CONTENTS
Page



11

III. Appellants Are Entitled to Maintain A 
Class Action Even Under the District 
Court's Analysis of the 1972 Act..........  46
A. Having Raised Class Allegations at the 

Administrative Level, Appellants Are 
Entitled to Raise Class Allegations
in District C o u r t ..............   47

B. Appellants Have Independent Standing 
to Maintain A Class Action Pursuant 
to § 1981 of the Civil Rights Act
of 1866, As Amended................... 50

IV. Each Member of an Affected Class Need Not 
Comply With the Administrative Procedures 
in Order to Join in a Class Action Under 
Title V I I .................................  54

CONCLUSION.......................................... 55
ADDENDUM

42 U.S.C. §§2000e-5, 2000e-16 ................. la
Bowers v. Campbell, No. 72-1273 (9th Cir. 1974) 9a



iii

TABLE OF AUTHORITIES

Cases:

Abrams v. Johnson, 7 EPD 1(9380 (N.D. Ohio 1974) . . 
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 
Allen v. Crosby, 8 FEP Ca. 528 (E.D. Pa. 1973). . .
Baca v. Butz, 8 FEP Cas. 116 (D.N.M. 1974)........
Bernardi v. Butz, 7 EPD 9381 (N.D. Cal. 1974) . . .
Bolling v. Sharpe, 347 U.S. 497 (1954)............
Bor " "  ate-Palmolive Co., 416 F.2d 711 (7th

* Bowers v. Campbell, No. 72-1273 (9th Cir. 1974) . .
Bullock v. Mumford, Civil Action No. 71-2058

(D.D.C. 1974) ...................................
Caldwell v. National Brewing Co., 443 F.2d 1044 

(5th Cir. 1971) .................................
Carreathers v. Alexander, 7 EPD 1(9379 (D. Colo. 

1974) ............................................
Chandler v. Johnson, 7 EPD 1(9139 (C.D. Cal. 1973). .
Coppersmith v. Johnson, 7 EPD 1(9388 (D.D.C. 1974) .
District of Columbia v. Carter, 490 U.S. 418 (1973)
Evans v. Johnson, 7 EPD 1(9351 (C.D. Cal. 1974). . .
Gautier v. Weinberger, 6 EPD 1(9001 (D.D.C. 1973) .

37
19, 53 
37 
37 
37 
22

18, 43
51, 52-3, 54 

46

51

37, 42 

37
51, 52
37
37

Page

* Authorities chiefly relied upon are marked by asterisks



iii

Cases;

Abrams v. Johnson, 7 EPD U9380 (N.D. Ohio 1974) . . 37
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 19, 53
Allen v. Crosby, 8 FEP Ca. 528 (E.D. Pa. 1973). . . 37
Baca v. Butz, 8 FEP Cas. 116 (D.N.M. 1974)........  37
Bernardi v. Butz, 7 EPD 1(9381 (N.D. Cal. 1974). . . 37
Bolling v. Sharpe, 347 U.S. 497 (1954)............  22
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th

Cir. 1969).......................................  18, 43

* Bowers v. Campbell, No. 72-1273 (9th Cir. 1974) . . 51, 52-3, 54
Bullock v. Mumford, Civil Action No. 71-2058

(D.D.C. 1974) .....................................  46
Caldwell v. National Brewing Co., 443 F.2d 1044

(5th Cir. 1971)...............................  51
Carreathers v. Alexander, 7 EPD 1(9379 (D. Colo.

1974).........................................  37, 42
Chandler v. Johnson, 7 EPD 1(9139 (C.D. Cal. 1973). .
Coppersmith v. Johnson, 7 EPD 1(9388 (D.D.C. 1974) . 37
District of Columbia v. Carter, 490 U.S. 418 (1973) 51, 52
Evans v. Johnson, 7 EPD 1(9351 (C.D. Cal. 1974). . . 37
Gautier v. Weinberger, 6 EPD 1(9001 (D.D.C. 1973). 37

TABLE OF AUTHORITIES

Page

* Authorities chiefly relied upon are marked by asterisks.



IV

Page

* Griffin v. United States Postal Service, 7
EPD U9133 (M.D. Fla. 1973).......... ..........  36, 42

Griggs v. Duke Power Co., 401 U.S. 424 (1971) . . 18
Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C. 16, 17, 37, 38

1973), appeal pending, D.C. Cir. No. 73-2072 39, 40, 49
Hadnott v. Laird, 149 U.S. App. D.C. 358, 463

F . 2d 304 (D.C. Cir. 1972).................... 38
Hall v. Werthan Bag Corp., 251 F. Supp. 184 (M.D.

Tenn. 1966)...................................  19
Handy v. Gayler, 364 F. Supp. 676 (D. Md. 1973) . 37, 50

* Henderson v. Defense Contract Administration 
Services Region, New York, 370 F. Supp. 180 
(S.D.N.Y. 1973)...............................  36, 42

Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir.
1973)............................................  38

Jackson v. United States Civil Service Commission,
7 E.P.D. 1(9134 (S.D. Tex. 1973)..............  36, 40-1

Jenkins v. United Gas Corp., 400 F.2d 28 (5th
Cir. 1968)............ ........................  43

Johnson v. Georgia Highway Express, Inc._, 417
F . 2d 1122 (5th Cir. 1969)......................  18

Johnson v. U.S. Postal Service, 364 F. Supp.
37 (N.D. Fla. 1973), aff'd per curiam on other 
grounds, 8 EPD 1(954 8 (5th Cir. 1974) . I . 37

* Macklin v. Spector Freight Systems, Inc., 156 51, 52, 54
U.S. App. D.C. 69, 478 F.2d 979 (D.C. Cir.
1973)

* McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).........................................  19

McKenzie v. McCormick, Civil Action No. 974-73
(D.D.C. 1974) .................................  22

* Authorities chiefly relied upon are marked by asterisks.



V

Moss v. Lane Co., Inc., 471 F.2d 853 (4th Cir.
1973) .......................................... 18-19, 38

Nimtz v. Berzak, 7 EPD 1(9273 (E.D. La. 1974). . . 37
* Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th

Cir. 1968).....................................  18, 45, 54

* Penn v. Schlesinger, 490 F.2d 700 (5th Cir. 1973)
rev'd per curiam sub nom. Penn v. Laird, 8 E.P.D.
119543 (5th Cir. 1974) (en b a n c ) ............... 51-2

Pointer v. Sampson, 62 F.R.D. 689 (D.D.C. 1974) . 37, 49-50
* Reynolds v. Wise, 375 F. Supp. 145 (N.D. Tex. 1974) 22, 37, 41

Roberts v. Mumford, 8 EPD 1(9692 (D.D.C. 1974) . . 37, 45-6
Robinson v. Warner, 8 EPD 1(9452 (D.D.C. 1974) . . 37

Roney v. Saxbe, 8 E.P.D. 1(9587 (D.D.C. 1974). . . 37

Salone v. United States, 7 EPD 1(9376 (W.D. Okla.
“ T974) . T - ^ . - r r r .........................  37
Sanchez v. Standard Brands, Inc., 431 F.2d 455

(5th Cir. 1970) 7 ............................. 44, 45
Spencer v. Schlesinger, 374 F.Supp. 840 (D.D.C. 1974) , 

appeal pending, D.C. Cir. No. 74-1787 ........  37
Sperling v. United States, 7 EPD 1(9274

W .— N.J. 1974) . . . .......................... 37
Thomas v. Dept, of State, 8 E.P.D. 5(9622 (D.D.C.

1974) . . ........... ........................... 37

Thompson v. Department of Justice, 372 F. Supp.
762, (N.D. Cal. 1974), appeal pending, 9th Cir.
No. 74-1847 ...................................  37

Tomlin v. Air Force Medical Center, 369 F.Supp. 353,
(S.D. Ohio 1974), appeal pending, 6th Cir. No.___ 37

Page

*Authorities chiefly relied upon are marked by asterisks.



vi

Williams v. Mumford, 6 E.P.D. 1(8785 (D.D.C. 1973)
appeal pending/ D.C. Cir. No. 73-2120 ..........  37, 45, 49

Statutes and Rules: Page
* Title VII of the Civil Rights Act of 1964, as

amended by the Equal Employment Opportunity
Act of 1972, 42 U.S.C. §2000e et se^............  Passim

* Title VII, Section 706, 42 U.S.C. §2000e-5......... 20-1
* Title VII, Section 717, 42 U.S.C. §2000e-16 . . . .  20, 21, 29, 31,

35, 47, 48

* Civil Rights Act of 1866, as amended, 42 U.S.C.
§1981 (1970).....................................  4, 17, 23, 50

53, 54

5 U.S.C. §7151 ...................................  22
Rule 23 of the Federal Rules of Civil Procedure . . 1, 4, 13, 46

Legislative Materials:
* Senate Committee on Labor and Public Welfare, 21, 23-4, 25-6,

Legislative History of the Equal Employment 27, 28, 29, 30,
Opportunity Act of 1972, 92d Cong., 2nd Sess. 31, 38, 39
(Committee Print 1972) .........................

* S. Rept.No. 92-415, 92d Cong., 1st Sess. (1971) 25-6, 28
* H.R. Rept. No. 92-238, 92d Cong., 1st Sess. (1971)

(1971)............................................ 23-4, 27
* 118 Cong. Rec (1972) .............................  21, 29, 30,

31, 38, 39

* 119 Cong. Rec. S. 1219 (daily ed. Jan. 23, 1973). . 30
H.R. 1746, 92d Cong................................  26
S. 2515, 92d Cong..................................  27 , 29

* Authorities chiefly relied upon are marked by asterisks.



vii

Page
27, 29S. 2515, 92d Cong.

Miscellaneous:
Executive Order 11478, 34 F.R. 12985 (1969) 4,
Executive Order 11246 (1965) 23

* Authorities chiefly relied upon are marked by asterisks



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 74-1929

NELL PENDLETON, et al.,
Plaintiffs-Appellants,

v.
JAMES SCHLESINGER, et al.,

Defendants-Appellees.

Appeal from the United States District Court, 
for the District of Columbia

BRIEF FOR APPELLANTS

This is an appeal from an Order of the United States 
District Court for the District of Columbia (Smithy D CJ„) which 
denied appel]ants' motion to certify this case as a class action 
under Rule 23(b)(2) of the Federal Rules of Civil Procedure, and 
which dismissed the action as to three of the seven named plain­

tiffs.



2

STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Whether the District Court correctly ruled that 

in view of the administrative remedies available to Federal 
employees, they may never seek to alleviate patterns and 
practices of discrimination in their employing agencies by 
maintaining class actions pursuant to Title VII of the Civil 
Rights Act of 1964, as amended in 1972?

2. Whether the District Court correctly ruled that 
Federal employees who have not filed initial charges of dis­
crimination with their employing agencies are thereby pre­
cluded from joining other employees who have filed such 
charges as plaintiffs in a civil action brought pursuant to 
Title VII?

This case has not been before this Court on any pre­
vious occasion.

REFERENCES TO PARTIES AND RULINGS
The Memorandum Opinion and Order which the appellants 

have presented for review by this Court was filed by the 
Honorable John Lewis Smith, Jr., United States District Judge 
for the District of Columbia, On August 9, 1974. The Memorandum 
and Order is reprinted in the appendix at pages 57-65 and has 
also been printed in 8 [CCH] EPD 1[ 9598 (D.D.C. 1974).

Parties to this appeal in addition to the parties 
identified in the caption are as follows: Arthur Simpkin,
James Douglas, Julius A. Gross, Paul Davis, Wilhelmina Taylor,.



3

and Helen Martin, appellants; Howard Callaway - Secretary of 

the Army, Major General Robert Bernstein - Commander of Walter 
Reed Army Medical Center, Robert E. Hampton - Chairman of the 
U.S. Civil Service Commission, Jayne B. Spayne - Vice-Chairman 
of the U.S. Civil Service Commission, Ludwig J. Andolsek - 
Commissioner of the U.S. Civil Service Commission, and the 
United States Civil Service Commission, appellees.

STATUTE INVOLVED
The statute involved is Title VII of the Civil Rights 

Act of 1964, as amended by the Equal Employment Opportunity Act 
of March 24, 1972, 42 U.S.C. §§ 2000e et seq., more particularly 
Sections 706 and 717, 42 U.S.C. §§ 2000e-5, 2000e-16. The text 
of these sections has been reprinted in the addendum to this 

brief at page la.

STATEMENT OF THE CASE
A. The Proceedings Below
On August 31, 1973, Nell Pendleton, a black employee

of Walter Reed Army Medical Center ("Walter Reed"), commenced
this action for injunctive and other relief from Walter Reed's
discriminatory employment policies and practices. Ms. Pendleton
sued individually and on behalf of all black persons similarly

1/situated, to protect the rights guaranteed to them by Title VII

1/ Six other black employees of Walter Reed joined Ms. Pendleton 
as named plaintiffs in an amended complaint filed as a matter of 
course on November 30, 1973 (App. p. 21).



4

of the Civil Rights Act of 1964, as amended by the Equal Employ­
ment Opportunity Act of 1972 (Pub. L. 92-261, March 24, 1972); 
the Civil Rights Act of 1866 (42 U.S.C. § 1981); the Fifth Amend­
ment to the United States Constitution; and Executive Order 11478 
(34 F.R. 12985 (1969)) (App. p. 4).

Plaintiffs filed a motion on January 11, 1974, for 
certification of the case as a class action pursuant to Rule 
23(b)(2) of the Federal Rules of Civil Procedure. The proposed 
class included: (1) all past, present, and future black employees
of Walter Reed; (2) all past, present, and future black appli- 
cants for employment at Walter Reed; and (3) all black persons 
who might have applied for employment at Walter Reed but for 
defendants' discriminatory policies (App. p. 54).

After a hearing and submission of memoranda by the 
parties, District Judge Smith issued a Memorandum Opinion and 
Order on August 9, 1974, denying the motion (App. p. 57). Judge 
Smith did not consider whether plaintiffs met the requirements 
for a class action set forth by Rule 23, but instead denied 

certification solely on the ground that "federal employees can­
not maintain class actions under Title VII suits." (App. p. 58). 
This holding was based on a finding that federal employees, un­
like their counterparts in the private sector, have no right 
to trials de novo in district court under Title VII. Accord­
ingly, each civil action must be based on an administrative 
record, thereby precluding class actions. The same reasoning



5

bars suits by plaintiffs who have not first filed discrimination
complaints with their agencies, and consequently, the District

2/
Judge dismissed this action as to three named plaintiffs who 
have not filed such complaints.

3/
B. Statement of Facts
Walter Reed is one of the United States Army's major 

hospital and medical research facilities, employing approxi­
mately 3181 civilian employees. Despite the fact that 48 per­
cent of these employees are black, widespread patterns and 
practices of discrimination at Walter Reed have relegated most 
blacks to lower paying, less prestigious job positions. For 
instance, only 16 percent of 362 employees in jobs at the GS-11 
level or above are minority employees, while 73 percent of the 
1076 employees occupying physically demanding and unattractive 
wage grade jobs are minority group members. Discrimination is 
similarly apparent in the lack of any meaningful efforts to 
eliminate the effects of this discrimination: though blacks
comprise about half of the work force, for example, four times 
as many whites as blacks have participated in Walter Reed's 
Career Training Program. Many other illustrations of such past 
and present discrimination exist, and have been noted in a number

2/ Julius A. Gross, Paul Davis, and Wilhelmina Taylor.
3/ The statement of facts is derived from the complaint and 
the Federal administrative proceedings. No discovery or other 
evidentiary proceedings have taken place in this action.



6

of studies of the conditions at Walter Reed undertaken by the 
Civil Service Commission (CSC), the Army, and others.

Each of the seven appellants, black employees of 
Walter Reed, has been subjected to some aspect of the hospital's 
discriminatory patterns and practices. James Douglas has worked 
as a GS-3 aide in the Diet Therapy Branch of the Food Services 
Division of Walter Reed —  an all-black area —  since 1966. No 
positive action has been taken to investigate his formal complaint 
of discriminatory non-promotion, filed September 7, 1973, because 
Walter Reed and the CSC determined that the complaint related to 
a "classification" error in the jobs in question, and that there­
fore it was not subject to the equal employment regulations.
Arthur Simpkin has worked as a janitor for 25 years, and during 
this time has received only one promotion. His complaint of 
discrimination, filed in May, 1973, has not yet been acted upon. 
Julius A. Gross, trained as an engineer draftsman, has been 
employed by Walter Reed exclusively as a janitor. Paul Davis 

has worked for 27 years in a dead-end, physically hazardous lab­
oratory worker job, despite his repeated requests for transfers; 
additionally, he is compensated at a lower rate than a white 
employee performing the same task. Wilhelmina Taylor has been 
employed since September, 1972, in a dead-end job as a Wage 
Grade 1 Housekeeper in Janitorial Services.

The plight of these five employees, and others like 
them, is reflected in the discrimination suffered by Helen Martin



7

and Nell Pendleton, for discrimination in the latter cases was 
the direct result of the two women's efforts as equal employ­

ment opportunity ("EEO") counselors to assert the rights of all 
minority employees at Walter Reed. Their complaints arose out 
of similar circumstances. Ms. Martin has been employed by 
Walter Reed since 1966 and presently works as a Medical Records 
Librarian, GS-7. Prior to January 31, 1973, she worked as a 
part-time EEO counselor. Ms. Pendleton is presently employed 
as a Grade GS-9 chemist at Walter Reed. From April 24, 1972, 
until January 31, 1973, she served as Chief EEO counselor at 
Walter Reed, a Grade GS-11 job. Both women were highly effec­
tive EEO counselors; Ms. Pendleton, in particular, received 
several awards and citations from the Army for her outstanding 
work, and is respected by numerous Walter Reed employees, both 
black and white, as an accomplished advocate of equal employ­
ment opportunity.

On January 30, 1973, both women were removed without 
notice or warning from their EEO positions by General William 
H. Moncrief, then Commanding General at Walter Reed. The re­
movals, allegedly due to the women's participation in a "con­
frontation" between black employees and Walter Reed officials,

1/engendered wide-scale protests among Walter Reed employees.
On February 5, 1973, the women filed in timely fashion, pursuant 
to the applicable laws and regulations, informal complaints of

4/ For example, over 500 employees petitioned for Ms. Pendleton's 
reinstatement as Chief EEO counselor.



8

discrimination with Walter Reed, in which they alleged that 
their removals were discriminatory and were part of a general 
pattern and practice of discrimination against blacks at 
Walter Reed.

On March 12, 1973, following a period of informal 
counseling which failed to resolve her complaint, Ms. Martin 
filed a written complaint of discrimination on behalf of her­
self and the class of blacks who are sought to be represented 
in this action, in which she again alleged widespread patterns 
and practices of discrimination at Walter Reed as the cause 
of her termination as an EEO counselor and the consequent 
chilling effect of such action on the rights of all minority 
employees at Walter Reed. On June 15, 1973, a report of 
investigation into Ms. Martin's complaint was issued by the 
United States Army Civilian Appellate Review Agency ("USACARA"). 
This report concluded that her complaint of discrimination 
was not supported, and a final agency decision dismissing the 
complaint was returned by the Army in a letter dated October 
29, 1973. Ms. Martin was also notified that within 30 days 
of the receipt of the letter, an action would be brought in 
Federal district court appealing the dismissal. She did so 
by joining as a plaintiff in the case at bar.

Ms. Pendleton's complaint followed a more complex 
course. After a period of informal counseling (during which 
the EEO counselor handling her complaint unsuccessfully



9

recommended that she be reinstated) she filed a formal 
written complaint of discrimination on March 12, 1973, on 
behalf of herself and the class of blacks who are sought to 
be represented in this action. In addition to general allega­
tions, however, her complaint set forth in detail a number 
of specific areas in which Walter Reed discriminated against 
blacks, including hiring, promotions, training, utilization 
of skills, job classifications, disciplinary actions and 
working conditions. Additionally, Ms. Pendleton stated that 
she would provide names of other individuals discriminated 
against by Walter Reed and would also supply specific details 
about the manner in which such persons were being discriminated 
against. This information was shortly thereafter provided, 
specifically naming appellants Wilhelmina Taylor, James Douglas 
and Paul Davis as members of the class of employees on behalf 
of whom the complaint of discrimination was filed, and describ­
ing the specific manner in which these named plaintiffs, as 
well as others, had been discriminated against and were con­
tinuing to be discriminated against by Walter Reed's adminis­

tration.
By letter dated March 23, 1973, Will Douglas, Jr., 

the EEO Officer at Walter Reed, notified Ms. Pendleton that 
all portions of the complaint dealing with matters other than 
her removal from her job would be investigated and processed 
separately as a so-called "third party complaint." The result



10

of this decision was that, instead of being part of the in­
vestigation conducted by USACARA, the "third party complaint" 
would be investigated by Mr. Douglas and other officials at 
Walter Reed —  the very people which the complaint charged 
with discriminatory conduct. Mr. Douglas' ruling also denied 
all back employees, other than those who had filed separate 

complaints of discrimination, the right to adjudicative hear­
ings before an independent complaint examiner. On April 13, 
1973, Ms. Pendleton appealed from this decision in a timely 
fashion to the CSC's Board of Appeals and Review ("BAR").

By letter dated August 3, 1973, the BAR notified counsel for 
Ms. Pendleton that the decision of Walter Reed to separate 
the claims was affirmed. Counsel were also notified that with­
in 30 days of the receipt of the letter an action could be 
brought in the district court appealing the decision.

While pressing her appeal of Douglas' decision to 
split her complaint into two parts, Ms. Pendleton also expressed 
concern about the allegations contained in the so-called "third 
party" aspect of her charge, and repeatedly requested Walter 
Reed to undertake an investigation of these allegations as re­
quired by § 713.251(b) of the CSC regulations. Even this 
inadequate form of agency self-investigation, however, was not 
undertaken by Walter Reed. Not until December 8, 1973, did 
Walter Reed inform Ms. Pendleton that a "decision" had been 
made on her so-called general allegations. The partisan



11

nature of this supposedly impartial "decision" was reflected 
by the fact that each of its sections was labelled a "refuta­
tion" of a specific charge contained in Ms. Pendleton's 
complaint, and there was no indication that her class allega­
tions had been investigated or even considered. Acting pur­

suant to § 713.251 of the CSC regulations, Ms. Pendleton 
appealed from this decision in timely fashion on January 6, 
1974, to the CSC's Bureau of Personnel Management Evaluation. 
This appeal is still pending, due to Walter Reed's failure 
to provide adequate responses to questions propounded by
Bureau investigators, and to the CSC's own delays in pursuing

5/
its investigation.

The portion of the administrative complaint which 
related solely to Ms. Pendleton's removal from her job as 
Chief EEO counselor was investigated by USACARA, and a report 
of investigation was issued on May 8, 1973, stating that dis­
crimination was not a factor in Ms. Pendleton's removal. In 
a letter dated May 22, 1973, Major General Spurgeon Neel, 
the Commanding General of the United States Army Health Ser­
vices Command, and the individual assigned to make a decision 
on Ms. Pendleton's complaint, adopted the conclusion of no 
discrimination from the investigator's report without indicat­
ing the basis for his decision. In doing so, General Neel

5/ Counsel for appellants have repeatedly but unsuccessfully 
requested CSC investigators to expedite their investigation 
of Ms. Pendleton's class allegations.



12

failed to comply with the applicable regulations of the CSC 
and the Army, which require that an opportunity be afforded 
a complainant to discuss the investigative file with an ap­
propriate activity official (an "adjustment session") before 
the agency reaches an initial decision. As soon as Ms. 
Pendleton was notified of the illegal course of conduct 
adopted by the Army, she insisted that she be afforded the 
procedural safeguards to which she was entitled, and that 

following such adjustment session, a new decision be made by 
another responsible Army official not involved in the prior 
illegal decision. By letter dated June 25, 1973, Major 
General Neel accordingly withdrew his decision, but refused 
Ms. Pendleton's request that the matter be subsequently re­
solved by another official. A session was held on July 12, 
1973, to discuss the investigative fils, at which time Ms. 
Pendleton submitted a written memorandum reviewing in substan­
tial detail the evidence in her investigative file. By letter 
dated July 19, 1973, Ms. Pendleton was notified that Major 
General Neel had again found that discrimination "was not a 
factor" in her removal as Chief EEO counselor. As before, 
General Neel failed to provide any basis for his decision.

On July 31, 1973, Ms. Pendleton requested in timely 
fashion the appointment of a complaints examiner to hear her 
complaint of discrimination, pursuant to §§ 713.217-218 of 
the CSC regulations. Because Walter Reed failed to forward



13

the complaint file to the CSC, however, the CSC refused to 
appoint a complaints examiner. Not until August 20, 1973, 
did the Army notify the CSC that it had forwarded the com­
plaint file. On August 31, 1973, Ms. Pendleton instituted 
the present case as a Title VII class action against the 
appropriate officials for widespread discriminatory employ­
ment practices at Walter Reed. Subsequent to the filing of 
this suit, Ms. Pendleton requested that a Civil Service hear­
ing on her individual complaint not be held until the court 
ruled on the propriety of dividing her complaint into two 
parts. The basis for her request was that such a hearing 
would be premature, unduly burdensome, and a denial of her 
right to have her individual complaint heard as a part of a 
single hearing on all aspects of discriminatory patterns and 
practices at Walter Reed. On October 30, 1973, the CSC 
granted her request and postponed a hearing on her individual 
case until "completion of litigation in the courts."

I. Introduction and Summary of Argument
This appeal presents a pure question of law: 

whether Federal employees may bring class actions pursuant 
to Title VII of the Civil Rights Act of 1964, as amended in 
1972. The District Court denied class action status to this 
case without even considering whether plaintiffs met the 
requirements of Rule 23, holding instead that the legislative 
history of the Equal Employment Opportunity Act of 1972 and



14

the administrative scheme established by that law preclude 
trials de novo, and hence class actions, for Federal employees. 
If allowed to stand, this decision would virtually negate pri­
vate enforcement of the civil rights laws against Federal 
agencies. Employees of such agencies would be limited to 
administrative determinations of their individual complaints, 
often by the very people charged with discrimination, without 
having an opportunity to attack patterns and practices of 
discrimination which are both more subtle and more pernicious 

than any individual incidents.
Aside from the unsound policy it represents, the 

decision of the Court below is faulty in a number of respects. 
It ignores the explicit language of the 1972 Act, which re­
quires that civil actions by Federal employees be governed by 
the same provisions which authorize civil actions by private 
sector plaintiffs. The latter provisions have been construed 
by the Supreme Court to establish the right of trials de novo 
and class actions for private employees, and must be extended 
to Federal workers as well. Moreover, the decision below 
contravenes the clear Congressional intent in extending Title 
VII to Federal government workers. The 1972 Committee reports 
and floor debates in both the House and Senate focus on the 
dismal record of Federal agencies and the CSC in enforcing 
the civil rights laws, and the consequent need for granting 
Federal employees the full rights to civil actions in district



15

courts which had been accorded to private sector employees 
under the 1964 Act. Congress expressly included trials de 
novo among these rights, and sanctioned class actions as an 
appropriate means of litigating Title VII actions.

By ignoring the thrust of the legislative history, 
and relying instead on an earlier version of the 1972 Act 
which was not passed, the District Court erroneously con­
cluded that Federal employees are to be permitted only a 
review of the administrative record in court, or in the 
rare cases where no record has been made, a de_ novo action 
on individual claims. The Court also incorrectly compared 

investigations by the Equal Employment Opportunity Commission 
(EEOC) of private sector complaints with investigations by 
Federal agencies and the CSC of Federal sector complaints.
Such a comparison fails to recognize the inherent bias of the 
agencies and the CSC against discrimination complaints directed 
at their own practices and procedures, the very bias which 
led Congress to grant Federal employees access to the courts 
under Title VI.

In addition to its inconsistency with the legisla­
tive history, the District Court's ruling is not supported 
by sound case law. Of the relatively small number of district 
court cases which have considered the issues presented here, 
the better-reasoned authorities conclude that trials de novo
and class actions are permissible in discrimination suits by



16

Federal employees. Most cases holding to the contrary are 
based on an uncritical acceptance of the decision in Hackley 
v. Johnson, 360 F. Supp. 1247 (D.D.C. 1973), appeal pending, 
D.C. Cir. No. 73-2072. That decision, however, seriously 
misreads the legislative history of the 1972 Act; in particu- 
law, it relies on several out-of-context or incorrectly re­
ported statements made during the Senate floor debates.

Finally, reasons of policy and efficiency militate 
against the District Court's decision. As noted above, the 

prohibition of class actions by Federal employees eliminates 
their ability to move against institutional patterns of dis­
crimination in government agencies. This result contravenes 
the Congressional policy of permitting employees to act as 
"private attorneys general" under Title VII in challenging 
such institutional discrimination. Moreover, preclusion of 
class actions will discourage the litigation of individual 
actions as well, for few individual employees will have the 
resources or courage to challenge discrimination when their 
best hope is for limited relief on the facts of their specific 
complaints rather than alleviation of the underlying causes 
which give rise to such complaints. At the same time, the 
litigation of individual complaints will unnecessarily burden 
the agencies and the courts with duplicitous actions which 
could be solved more efficiently in a single class proceeding. 
This waste of administrative and judicial resources will be 
unavoidable if the District Court's ruling is upheld.



17

Assuming, arguendo, the validity of the District 
Court's analysis, the appellants in the present case are still 
entitled to bring a class action on their claim. The District 
Court agreed that in cases where the employing agency or CSC 
fails to take final action on a complaint of discrimination 
within 180 days, the statute permits a trial de novo in dis­
trict court. The Court then held, however, that such a 

remedy is available only to individual complainants and can­
not be used to support a class action. This holding fails 
to recognize that in the case at bar, the charges raised by 
appellants Pendleton and Martin before the agency and CSC 
were class charges. As these charges were not acted upon by 
either the agency or the CSC within 180 days of filing, the 
appellants are entitled to maintain a de novo trial on their 
class charges in the present case, a conclusion directly sup­
ported by Hackley and other decisions which are otherwise un­
favorable to Federal employees' rights under Title VII. 
Alternatively, appellants have standing to maintain an employ­
ment discrimination class action against a Federal agency 
under the Civil Rights Act of 1866, as amended, 42 U.S.C.
§ 1981 (1970). As their standing under this section is in­
dependent of their rights under Title VII, the failure of the 
District Court even to consider § 1981 as a basis for main­
taining this action was erroneous.



18

Once it is determined that a class action is per­
missible in this case, it is also clear that the District 
Court's dismissal of three named plaintiffs for failure to 
file discrimination charges with their agency must be re­
versed. Well established principles of Title VII law permit 

all members of an affected class to raise their claims in 
a civil action as long as one plaintiff has complied with the 
administrative prerequisites. Since at least four of the 
named plaintiffs in the case at bar have complied with the 
statutory requirements, the others are entitled to maintain 

their causes of action as well.

II. Title VII Entitles Federal Employees to the
Same Rights to Trials De Novo and Class Actions 
in the District Courts As It Accords to Non- 
Government Employees____________________________

Were this case a Title VII action against discrimin­
ation brought by employees of a private employer, the avail­
ability of a class action remedy would be beyond dispute.
Griggs v. Duke Power Company, 401 U.S. 424, 426 (1971); Bowe 
v. Colgate-Palmolive Company, 416 F.2d 711, 719 (7th Cir. 1969); 
Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124 

(5th Cir. 1969). In fact, it is likely that a class action 
proceeding would be favored, in view of the courts' recogni­
tion that "[r]acial discrimination is by definition class dis­
crimination . . .." Oatis v. Crown Zellerbach Corp., 398 F.2d 
496, 499 (5th Cir. 1968). See also, Moss v. Lane Company, Inc.,



19

471 F .2d 853, 855 (4th Cir. 1973); Hall v. Werthan Bag Corp., 
251 F. Supp. 184, 186 (M.D. Tenn. 1966). It is equally 
clear that were appellants private employees, they would 
be entitled to a trial de novo in district court, regardless 
of any duplication of prior administrative proceedings. 

Alexander v. Gardner-Denver Company, 415 U.S. 36, 45 (1974); 
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In 
McDonnell Douglas, a unanimous Supreme Court held that the 
failure of the EEOC to find reasonable cause on a complaint 
of discrimination did not preclude subsequent suit in Federal 

district court:
"We agree with the Court of Appeals that 

absence of a Commission finding of reasonable 
cause cannot bar suit under an appropriate 
section of Title VII and that the District 
Judge erred in dismissing respondent's claim 
of racial discrimination under § 703(a)(1). 
Respondent satisfied the jurisdictional pre­
requisites to a federal action (i) by filing 
timely charges of employment discrimination 
with the Commission and (ii) by receiving 
and acting upon the Commission's statutory 
notice of the right to sue, 42 U.S.C. §§
2000e-5(a) and 2000e-5(e). The Act does 
not restrict a complainant's right to sue 
to those charges as to which the Commission 
has made findings of reasonable cause, and 
we will not engraft on the statute a re­
quirement which may inhibit the review of 
claims of employment discrimination in the 
Federal courts." 411 U.S. 798-799.
(Emphasis supplied).
It is in this context —  the significance to Title 

VII litigation of class actions and full evidentiary proceed 
ings in Federal district court —  that the decision of the



20

Court below, which withholds these rights from Federal employees, 
must be examined.

A. The Provisions of Title VII, As Amended, Grant 
Federal Employees the Right to Bring Civil 
Actions in the Same Manner as Private Employees

The most compelling evidence that actions brought
under Title VII against Federal agencies are to proceed in
the same manner as actions against private employers is found
in the provisions of Title VII itself. Section 717 (c) of the
Act, 42 U.S.C. 2000e-16 (c) states that a Federal complainant

"if aggrieved by the final disposition 
of his complaint, or by failure to take final 
action on his complaint, may file a civil 
action as provided in Section 706 . . .."
(Emphasis supplied).
Section 717(d), 43 U.S.C. 2000e-16 (d) then provides

that:
"The provisions of section 706(f) through 

(k), as applicable, shall govern actions 
brought hereunder." (Emphasis supplied).
Section 706 is the portion of Title VII which details

the procedures to be followed against private (and state and
6/

local government) employers. Thus, the procedure for civil

6/ Subsection 706(f), 42 U.S.C. § 2000e-5(f), inter alia, gives 
Jurisdiction to the United States district courts, provides for 
an expedited "hearing," states that the judge may appoint a master 
if he "has not scheduled the case for trial within one hundred 
and twenty days after issue has been joined," and authorizes 
court appointment of counsel and waiver of fees and other costs 
in appropriate cases. Subsection 706(g), 42 U.S.C. § 2000e-5(g) 
authorizes a wide range of relief, including injunctions and 
back pay. Subsection 706(j) makes the court action appealable

(footnote con't)



21

actions by private sector employees, which have been con­
strued by the Supreme Court and others to entitle such 
employees to trials de novo and class actions, are explicitly 
made applicable to suits by Federal employees as well.

It is true, of course, that Section 717(d) provides 
that Sections 706(f) through (k) shall govern "as applicable." 
But as a review of those sections makes clear, that phrase 
merely refers to those dealing with the EEOC and the Attorney 
General (e.g., Sections 706(f)(1) and (i)) which are obviously 
inapplicable to actions against the Federal government. To 
read more into the phrase would both render Section 717(d) 
meaningless and violate the Congressional intent in passing 
this section. As noted in the Conference Report on the 1972 

Act:
"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 . . .."
Section by Section Analysis, 118 Cong.
Rec. 7169 (1972); Senate Committee on 
Labor and Public Welfare, Legislative 
History of the Equal Employment Oppor­
tunity Act of 1972, 92 Cong., 2nd Sess.
(Committee Print, 1972) [hereinafter cited 
as History], at 1851.
The Conference Committee did not state that the pro­

visions concerning civil actions by private employees are

(Footnote con't)
under 28 U.S.C. §§ 1291 and 1292. Subsection 706 (k), 42 U.S.C. 
§ 2000e-5(k), enables the court to award reasonable attorney's 
fees and to hold the United States liable for costs the same 
as a private person.



22

partially applicable to Federal employees. Their statement 
is clear and unlimited; so are the provisions of Section 717; 
and the Court need go no further than these explicit pro­
visions to determine that Federal employees are entitled to 
the same civil action rights as private sector plaintiffs, 
including full evidentiary hearings and class actions in 
Federal court. Reynolds v. Wise, 375 F. Supp. 145, 148 
(N.D. Tex. 1974).

B. The Legislative History of the 1972 Amendment 
to Title VII Supports the Conclusion That 
the Rights of Federal Employees are Equal to 
Those of Private Employees 7/

An examination of the legislative history of Title
VII reinforces the conclusion that Federal employees are
entitled to plenary evidentiary hearings in Federal courts.
The Civil Rights Act of 1964 provided no mechanism for the
enforcement of the right of Federal employees to be free

£/
from employment discrimination. During the debates,

7/ The argument in this section is adopted in large part from 
the Memorandum in Support of Plaintiffs' Motion for Reconsider­
ation of the Court's Order to Remand in McKenzie, et al. v. 
McCormick, Civil Action No. 974-73 (D.D.C.). Plaintiffs' 
counsel in that case, Douglas L. Parker and Henry Polmer of 
Hogan & Hartson, were retained upon referral from the Wash­
ington Lawyers' Committee for Civil Rights.
8/ The right itself already existed in the Due Process Clause 
of the Fifth Amendment, e.g., Bolling v. Sharpe, 347 U.S. 497 
(1954), and cases cited therein, and in 5 U.S.C. § 7151. How­
ever, its enforcement had been largely limited to the CSC as

(Footnote con't)



23

hearings, and reports which accompanied the passage of the 

Equal Employment Opportunity Act of 1972, Congress expressed 
repeated dissatisfaction with the existing administrative 
procedures for handling complaints of discrimination, and 
pointed to the need for an impartial and comprehensive 
judicial examination of complaints not resolved at the 
administrative level. An overriding concern was that there 
be a higher authority to act as a check on agency self-in­
vestigations of discrimination complaints by employees, but 
that the CSC, as an interested party without expertise in 
discrimination matters, not be assigned final responsibility 
as the reviewing authority. Thus, in assessing the paucity 
of successful complaints under the existing administrative 
procedures, the House Committee on Education and Labor 

found that:
"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. The defect, which existed 
under the old complaint procedure, was 
not corrected by the new complaint pro- 
csss • • ••

Under the revised procedure, effec­
tive July 1, 1969, the agency is still 
responsible for investigating and judging 
itself . . . .  Although the complaint pro­
cedure provides for an appeal to the Board

(Footnote con't)
provided in Executive Order 11246 (1965) , superseded by Execu­
tive Order 11478 (1969), and civil suits brought under the 
Civil Rights Act of 1866, 42 U.S.C. § 1981.



24

of Appeals and Review in the Civil Ser­
vice Commission, the record shows that 
the Board rarely reverses the agency de­
cision.

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.

* * *

Aside from the inherent structural 
defects the Civil Service Commission has 
been plagued by a general lack of expertise 
in recognizing and isolating the various 
forms of discrimination which exist in 
the system . . . .  The Civil Service Com­
mission 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 procedures it has promul­
gated may actually operate to the disad­
vantage of minorities and women in systemic 
fashion . . . .

To correct this entrenched discrimina­
tion 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." H.R .
Rept. No. 92-238, 92nd Cong., 1st Sess.
(1971) [hereinafter cited as House Report] 
at 23-5; History at 83-5. (Emphasis 
supplied).



25

Similarly, the Senate Committee on Labor and Public 
Welfare noted the "general lack of confidence in the effec­
tiveness of the complaint procedure on the part of Federal 

9/
employees." Of particular importance was the Committee's 
recognition that the CSC is inherently a partisan of the 
Federal employer, since it is responsible for approval of 
the very agency employment standards which many Title VII 

complaints call into question:
"The Civil Service Commission's 

primary responsibility over all personnel 
matters in the Government does create a 
built-in conflict of interest for examin­
ing the Government's equal employment 
opportunity program for structural defects 
which may result in a lack of true equal 
employment opportunity . . . .

9/ S. Rept. No. 92-415, 92nd Cong., 1st Sess. (1971) [herein­
after cited as Committee Report] at 14; History at 423. The 
Committee Report stated in pertinent parts:

"Under present procedures, in most cases, 
each agency is still responsible for investi­
gating and judging itself . . .."

" . . .  Complaints have indicated skepticism 
regarding the [Civil Service] Commission's 
record in obtaining just resolutions of complaints 
and adequate remedies . . .."

*  * *  *

"The testimony of the Civil Service Commission 
notwithstanding, the committee found that an ag­
grieved Federal employee does not have access to 
the courts . . . .  Moreover, the remedial authority 
of the Commission and the courts has also been in 
doubt." Committee Report at 14, 16; History at 
423, 425.



26

An important adjunct to the strength­
ened Civil Service Commission responsibili­
ties is the statutory provision of a pri- 
vate right of action m  the courts by 
Federal employees who are not satisfied 
with the agency or Commission decision."
Committee Report at 15-16; History at~
424-5. (Emphasis supplied).
In view of these explicit acknowledgements of the 

difficulties facing Federal employees seeking employment 
opportunities, it is not surprising that while sections of 
the new law dealing with an expanded role for the EEOC in 
the private sector generated considerable controversy, the 
grant of broad rights to court action on behalf of Federal 
workers was virtually uncontested. The entire legislative 
history indicates that it was the intention of Congress in 
amending the 1964 Civil Rights Act to provide Federal employees 
with all of the rights previously accorded to employees of 
private companies to obtain trials de novo and class actions 
on their claims in Federal courts.

Legislation to amend the Civil Rights Act of 1964 
to strengthen the rights of Federal employees in this manner 

was introduced in both the House and the Senate in 1971.
The House of Representatives was first to take action, when 
the House Committee on Education and Labor favorably reported 
out H.R. 1746, the "Hawkins Bill." This bill would have 
amended the Civil Rights Act of 1964 to give the EEOC power 
in the private sector to issue cease and desist orders after



27

administrative hearings, with review of such orders in the 
United States Courts of Appeals. The bill also prohibited 
discrimination in the Federal sector and empowered the EEOC 
rather than the CSC to enforce the prohibition. Aggrieved 
Federal employees were given the right to file in United 
States district court "a civil action as provided in" the 
then existing section of Title VII which authorized such 
suits by private employees. The provisions of that section 
were to "govern civil actions" brought by Federal employees. 
In commenting on the Hawkins Bill, the House Committee stated

" . . .  [T]here can exist no justifica­
tion 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."
House Report at 23; History at 83.
After H.R. 1746 was reported out of Committee, the 

full House amended it and, in effect, substituted the 
"Erlenborn Bill" in its stead. The latter bill eliminated 
the EEOC's cease and desist power in the private sector and 
eliminated coverage of Federal employees altogether. The 
Erlenborn Bill was passed by the House on September 16, 1971.

At the same time that the House was considering 
amendments to the 1964 Civil Rights Act, similar legislation 
was before the Senate. The Senate Committee on Labor and 
Public Welfare favorably reported out an amended version 
of S. 2515 (the "Williams Bill"), referred to as the



28

"Committee Bill." Whereas the original Williams Bill had 
paralleled the Hawkins Bill of the House, the Committee Bill 
reinstated the CSC as the agency to enforce the prohibition 
against discrimination in the Federal sector. The Committee 
Bill, however, retained both the EEOC cease and desist powers 
in the private sector and the right of Federal employees to 
file civil actions identical to those filed by private 
employees under the unamended Civil Rights Act of 1964. 
Significantly, the Senate Committee's Report stated that:

" . . .  Aggrieved employees or appli­
cants will also have the full rights avail­
able in the courts as are granted to indi­
viduals in the private sector under Title 
VII." Committee Report at 16; History at 
425.
During the debate on the Committee Bill the EEOC's 

power to issue cease and desist orders was eliminated by the 
"Dominick Amendment," once again leaving the aggrieved pri­
vate employee free to pursue a private civil action in the

10/
Federal District Court. Thus, the bill which ultimately
passed the Senate and was approved (with only minor exceptions) 
by the House-Senate Conference Committee provided parallel 
rights for private and Federal employees to file civil actions 
in Federal district courts, as provided for in the original 
Hawkins and Williams Bills.

10/ It is important to note, in view of the decision of the 
Court below and others, that the Dominick Amendment did not 
limit in any way the applicability of the private sector civil 
action provisions to suits by Federal employees.



29

The various debates on the above bills are replete 
with remarks of legislators indicating that the purpose of 
Section 717 of the 1972 Act was to place the enforcement of 
Federal employees' rights on a par with the enforcement 
remedy available in the private sector, i.e ., a plenary trial 
at the district court level. Senator Harrison Williams, 
chief sponsor and floor manager of S. 2515, offered a close 
analysis of the bill then on the Senate floor, concluding:

"There is no reason why a Federal employee 
should not have the same private right of action 
enjoyed by individuals in the private sector, 
and I believe the committee has acted wisely 
in this regard." 118 Cong. Rec. 4922 (1972); 
History at 1727.
Senator Dominick, who supported the extension of 

Title VII protection to Federal employees and successfully 
prevented the EEOC's cease and desist order power with 
appellate review from supplanting the de novo action for 
private sector employees, also felt that all employees should 
have the same remedies:

" . . .  [I]t strikes me that one of the 
first things we have to do is at least to 
put employees who are holding their jobs, be 
they government or private employees, on the 
same plane so that they have the same rights, 
so that they have the same opportunities and 
so that they have the same 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." 118 Cong. Rec. 594 (1972); 
History at 680-81.



30

In a later debate, Senator Dominick stressed his 
belief in the importance of civil action remedies for employees 
in both the private and governmental sectors:

"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 the same remedies anyone else in the situation 
has, and this is a right to have the Federal court 
determine whether or not you have been discriminated 
against." 118 Cong. Rec. 3967 (1972); History 
at 1527.
The Dominick Amendment carried, eliminating the EEOC 

cease and desist power with appellate review and rendering 
identical the remedies available to all employees —  the right 
to trials de novo in the U.S. district courts.

If the various statements quoted above could possibly 
leave any doubt as to the intent of the Senate in enacting the 
Equal Employment Opportunity Act of 1972, the following state­
ment of Senator Cranston, one of the Act's co-sponsors and 
strongest supporters, is clear beyond dispute:

"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." 119 Cong. Rec. S. 1219 (daily ed.
Jan. 23, 1973) (Emphasis supplied). 11/

11/ This statement corrected an error in the original report of 
Senator Cranston's statement, in which the "not" had been mis­
placed to give the impression that the Senator had come out 
against a trial de novo. See 118 Cong. Rec. S. 2287 (daily ed. 
Feb. 22, 1972); History at 1744 [the error has also been corrected 
in the bound volume at 118 Cong. Rec. 4929 (1972)]. This print­
ing error may well have influenced several courts into deciding 
against the right of Federal employees to trials de novo. See, 
infra, p. 39.



31

The Congressional intent to sanction class actions 
as an appropriate litigation tool in Title VII cases is equally 
explicit. The section-by-section analysis of the Conference 
Report states:

"In establishing the enforcement provi­
sions under [Section 706(f)(1)] and subsection 
706(f) generally, it is not intended that any 
of the provisions contained therein shall affect 
the present use of class action lawsuits under 
Title VII in conjunction with Rule 23 of the 
Federal Rules of Civil Procedure. The courts 
have been particularly cognizant of the fact 
that claims under Title VII involve the vindi­
cation of a major public interest, and that 
any action under the Act involves considerations 
beyond those raised by the individual claimant.
As a consequence, the leading cases in this area 
to date have recognized that many Title VII 
claims are necessarily class action complaints 
and that, accordingly, it is not necessary that 
each individual entitled to relief be named in 
the original charge or in the claim for relief.
A provision limiting class actions was contained 
in the House bill and specifically rejected by 
the Conference Committee." 118 Cong. Rec. 7168
(1972); History at 1847. (Emphasis supplied.)
Thus, the legislative history of the 1972 Act

supports the conclusion that the provisions of Section 717(c)
and (d) mean exactly what they say: Federal employees are to
be accorded the full rights to bring civil actions under Title
VII as are granted to private employees, including trials de
novo and class actions.

C. The Court Below Incorrectly Read the Legis­
lative History and Administrative Scheme 
Established by the 1972 Act_______________



32

The Court below admitted that "on cursory examination, 
[the Senate Report's] language would indeed seem to support 
plaintiffs' position" (App. p. 61), but then proceeded to dis­
regard the clear thrust of that language. It reached this 
contrary conclusion on two grounds, both of which are erroneous.

First, the Court noted that the Senate Committee Bill 
(supra, p. 28) gave the EEOC cease and desist power in private 
sector discrimination cases. A corollary to this power was 
the limitation on appeals from EEOC decisions to a review of 
the record in the appropriate United States Court of Appeals. 
Trials de novo in district court would accordingly be limited 
to cases in which the EEOC dismissed the complaint without an 
attempted conciliation or hearing, or failed to take action 
within 180 days of the filing of the complaint. The Court 
correctly pointed out that such a scheme would restrict the 
rights of private sector employees to bring civil actions 
under Title VII. In this context, giving Federal employees 
the "full rights" available to employees in the private sector 
would not amount to trials de novo.

As has been seen, however, (supra, p. 28) the expanded 
powers of the EEOC were deleted during the Senate debate, 
and the bill ultimately passed by the House and Senate retained 
the original right of private employees to obtain plenary 
evidentiary proceedings in Federal court. There is no reason



33

to assume, as the Court below apparently did, that Congress 
intended to maintain the full civil action rights granted 
to private sector employees under the original Civil Rights 
Act of 1964, but to limit the rights of Federal employees to 
the discarded review procedures of the Committee Bill. Such 
an assumption is not only illogical, but also contradicts 
the repeated Congressional statements that the 1972 Act as 
finally passed provides equivalent employment opportunities 
for Federal and private sector employees. In particular, the 
statements of Senator Dominick, whose version of the bill 
maintaining de novo civil actions for private sector employees 
was eventually enacted into law, and the statement of Senator 
Cranston (supra, pp. 29-30) should lay to rest any argument 
that the equality granted to Federal employees extended only 
as far as the procedures set forth in the Committee Bill.

The second ground relied upon by the Court is equally 
unpersuasive. Because a Federal employee can appeal his 
agency's rejection of his grievance to the CSC, while a pri­
vate employee has no forum other than the district court in 
which to assert his complaint after rejection by the EEOC, 
the Court held that "to give a federal employee the right to 
a trial do novo in addition to the Civil Service review route, 
would bestow upon him greater rights than were contemplated 
for the private sector employee" (App. p. 64) . The flaw in



34

this analysis is that it equates an optional administrative 
appeal to the CSC by Federal employees with private employees' 
right of de novo review in district court of an EEOC decision.
As the House Report properly notes (supra, p. 23), the initial 
investigation of a Federal employee's discrimination complaint 
carried out by the very agency charged with discrimination 

is in truth no investigation at all. Yet by the reasoning 
of the District Court, such a procedure is equivalent to an 
EEOC investigation on the complaint of a private sector employee, 
with the Federal employee receiving the additional "advantage" 
of an appeal to the CSC. Not only is there no advantage in 
such an appeal, but the CSC proceeding does not even rise to 
the level of an EEOC investigation. As both the House and 
Senate reports recognized (supra, pp. 24-5), the CSC is 
inherently a partisan of the Federal employer, and its own 
regulations are very often the cause of the discrimination it 
is investigating. This inherent deficiency in CSC investiga­
tions is precisely the reason for the Congressional grant in

12/the 1972 Act of full civil action rights to Federal employees.
This conclusion is in no way inconsistent with the 

Congressional determination in the 1972 Act to maintain the

12/ The weakness of the District Court's decision is further 
illustrated by the fact that, unlike their powers in the pri­
vate sector, neither the EEOC nor the Attorney General may 
bring a Title VII action against a Federal agency, and conse­
quently Federal sector enforcement is left entirely to private 
plaintiffs.



35

CSC administrative appeal in Federal sector discrimination 
cases. In accepting the assurances of good faith enforcement 
from the CSC, Congress permitted the Federal executive branch 
a full opportunity to put its own house in order. At the 
same time, however, Congress clearly intended that the courts 
would provide Federal sector litigants with plenary evidentiary 
hearings as a check on the agencies and the CSC, just as it 
intended that the courts would provide private sector liti­
gants such hearings as a check on the EEOC. In this regard, 
it is significant that under the statute an aggrieved Federal 
employee is not required to resort to the CSC at all. Section 
717(c) permits an employee, upon receipt of the final action 
of his employing agency, or after such agency has failed to 
take final action within 180 days of the filing of the com­
plaint, to seek relief in either the CSC or Federal court.
The employee thus has the option of by-passing the CSC 
altogether and proceeding directly to the district court.
Surely, if Congress had intended that a Federal employee's 
primary remedy be an administrative one, and had intended 
that the courts only review an administrative record, use of 
the CSC would not have been made entirely optional but would 
have been a prerequisite to review in the courts. To the 
contrary, the provisions of the 1972 Act and the procedures 
established by the Act make clear that Congress intended only 
that Federal court litigation be preceded by a good faith



36

effort to employ the investigative procedures of the CSC or 
EEOC, as the case may be. After compliance with such proce­
dures, however, the aggrieved party, whether a Federal or 
private sector employee, is entitled to a plenary hearing 
(and, where appropriate, a class action) in Federal district 
court.

D. Sound Case Law Supports the Right of Federal 
Employees to Maintain Trials De Novo and Class 
Actions Under Title VII_______________________

Although the District Court cited a number of cases 
dealing with the issues of trials de novo and class actions 
for Federal employees (App. p. 60), it did not directly rely 
on any of these cases in arriving at its decision. But 
because of the importance of the issues, and because no Court 
of Appeals has yet ruled upon them, we believe it would be 
useful to discuss briefly several of these district court cases.

Approximately thirty cases have dealt with trials
de novo and/or class actions for Federal employees under Title
VII, and the majority of them have been determined adversely

13/
to the employees. Virtually all of the negative decisions,

13/ To our knowledge, the following cases have been decided 
on the issues of trials de novo and class actions for Federal 
employees:

Decisions favorable to employees: Jackson v. United States
Civil Service Commission, 7 E.P.D. H9134 (S.D. Tex. 1973); 
Henderson v. Defense Contract Administration Services Region,
New York, 370 F. Supp. 180 (S.D.N.Y. 1973); Griffin v. United 
States Postal Service, 7 E.P.D. 119133 (M.D. Fla. 1973); (cont'd.)



37

however, have relied in whole or in part on the analysis of
District Judge Gesell in Hackley v. Johnson, 360 F. Supp.
1247 (D.D.C. 1973), appeal pending, D.C. Cir. No. 73-2072.
Their reliance is unfortunate, for this decision is based on a
serious misreading of the legislative history previously set 

14/
forth.

13/ (cont'd.)

Carreathers v. Alexander, 7 E.P.D. 119379 (D. Colo. 1974) ; 
Reynolds v. Wise, supra; Allen v. Crosby, 8 FEP Cas. 528 (E.D. 
Pa. 1973) .

Decisions adverse to employees: Hackley v. Johnson, 360
F. Supp. 1247 (D.D.C. 1973), appeal pending, D.C. Cir. No. 
73-2072; Williams v. Mumford, 6 E.P.D. 1(8785 (D.D.C. 1973); 
Spencer v. Schlesinger, 374 F. Supp. 840 (D.D.C. 1974), appeal 
pending, D.C. Cir. No. 74-1787; Robinson v. Warner, 8 E.P.D.
1(9452 (D.D.C. Cir. 1974); Gautier v. Weinberger, 6 E.P.D. 1(9001 
(D.D.C. 1973); Pointer v. Sampson, 62 F.R.D. 689 (D.D.C. 1974); 
Roney v. Saxbe, 8 E.P.D. 1(9587 (D.D.C. 1974) ; Thomas v. Dept, 
of State, 8 E.P.D. 1(9622 (D.D.C. 1974); Roberts v. Mumford, 8 
E.P.D. 1(9692 (D.D.C. 1974); Coopersmith v. Johnson, 7 E.P.D.
1(9388 (D.D.C. 1974); Thompson v. Dept, of Justice, 372 F. Supp. 
762 (N.D. Cal. 1974) , appeal pending, 9th Cir. No. 74-1847;
Tomlin v. Air Force Medical Center, 369 F. Supp. 353 (S.D.
Ohio 1974) , appeal pending, 6th Cir. No. _____; Handy v. Gayler,
364 F. Supp. 676 (D. Md. 1973); Abrams v. Johnson, 7 E.P.D.
1(9380 (N.D. Ohio 1974); Chandler v. Johnson, 7 E.P.D. K9139 
(C.D. Cal. 1974); appeal pending, 9th Cir. No. 74-1596; Evans 
v. Johnson, 7 E.P.D. 1(9351 (C.D. Cal. 1974); Bernardi v. Butz,
7 E.P.D. 1(9381 (N.D. Cal. 1974); Nimtz v. Berzak, 7 E.P.D.
1(9273 (E.D. La. 1974); Sperling v. United States, 7 E.P.D.
119274 (D.N.J. 1974); Baca v. Butz, 8 E.P.D. 1(9566 (D.N.M. 1974); 
Salone v. United States, 7 E.P.D. K9376 (W.D. Okla. 1974);
Johnson v. U.S. Postal Service, 364 F. Supp. 37 (N.D. Fla. 1973), 
aff'd per curiam on other grounds, 8 E.P.D. 1(9548 (5th Cir.
1974) .
14/ A full analysis of Judge Gesell's decision may be found 
in the brief of Appellant to this Court in Hackley.



38

Judge Gesell's decision that Federal employees have
no right to trials de novo is founded primarily upon his reading
of several remarks by Senator Williams during the debates on
the 1972 Act, to the effect that Federal employees would be
permitted to file a civil action for "review of the agency 

15/
proceedings." See 360 F. Supp. at 1251-2. Standing alone,
these remarks leave the impression that the courts are to 
occupy only a supervisory role over the administrative proceed­
ings. When examined in the full context of the debates, how­
ever, the comments cannot be so read.

In the first place, one of Senator Williams' statements 
regarding "review" was actually an insertion of earlier comments 
relating to the original Committee Bill. Compare 360 F. Supp. 
at 1252 with 118 Cong. Rec. 4923 (1972); History at 1730.
As we have discussed (supra, p. 28 ), the Committee Bill con­
tained expanded powers for the EEOC, making limited review by 
the courts appropriate. When the Committee Bill was amended, 
however, full civil action rights for private employees were

15/ Judge Gesell also denied class action status to the plain­
tiffs but not on the sweeping grounds set forth by the District 
Court in the present case. See 360 F. Supp. at 1254. Neverthe­
less, Judge Gesell relied upon a clearly improper ground for 
his denial, holding that a class action could not proceed 
because the case of the individual plaintiff had been dismissed. 
It is beyond question in this Circuit and elsewhere that the 
merits of an individual's complaint of discrimination have no 
bearing on the capacity of that individual to represent a class. 
Hadnott v. Laird, 149 U.S. App. D.C. 358, 365 n.21, 463 F.2d 304, 
311 n. 21 (D.C. Cir. 1972); Huff v. N. D. Cass Co., 485 F.2d 710, 
712 (5th Cir. 1973); Moss v. Lane Co., supra, at 855.



39

restored, and the limited review concept was no longer applica­

ble.
The second comment by Senator Williams was made 

during the actual floor debates. Although he again mentioned 
"review" of the record, he followed that with the statement 
that Federal employees should have "the same private right of 
action enjoyed by individuals in the private sector." Supra, 
p. 29;. compare 360 F. Supp. 1251-2 with 118 Cong. Rec. 4922 
(1972); History at 1727. The juxtaposition of these contra­
dictory principles indicates at most some confusion on the 
part of Senator Williams as to the procedures followed in 
private sector cases, and hardly overcomes the clear thrust of 
the overall legislative history discussed above. In any event, 
it is apparent that this isolated remark does not support a 
rule against trials de novo, in view of the section-by-section 
analysis of the 1972 amendments, as finally enacted, which 
Senator Williams himself inserted into the record, and which 
makes clear that the provisions of Title VII governing civil 
actions by private sector employees also govern actions by 
Federal workers. See 118 Cong. Rec. 7169 (1972); History at 

1851.
An additional weakness of the Hackley decision is 

Judge Gesell's reliance upon the erroneously reported state­
ment of Senator Cranston. 360 F. Supp. at 1252 n.7. As noted



40

above (supra, p. 30), Senator Cranston subsequently corrected 
the error, and his true statement directly contradicts the 
conclusion reached in Hackley. Finally, Judge Gesell failed 
to consider the significance of the optional nature of an 
appeal to the CSC (supra, p. 35).

In view of these facts, it is not surprising that 
the result in Hackley has been rejected by courts which have 
independently examined the intent of the 1972 Act. In Jackson 
v. United States Civil Service Commission, 7 E.P.D. 119134 (S.D. 
Tex. 1973) , for example, the court upheld the right of Federal 
employees to trials de novo for the following reasons:

"The Congress, as evidenced by the 
legislative history of the Act . . ., was 
dissatisfied with the way in which the Civil 
Service Commission was doing its job to pre­
vent racial and other discrimination in the 
Federal government. Especially disturbing 
was the lack of a meaningful judicial review 
of actions taken by agencies which had held 
something less than true and complete pro­
ceedings 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; had it intended that the 
scope of the 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 . . ~

"This court is compelled to follow the 
view that a trial de novo has been intended 
by Congress by the foregoing analysis and 
by the practical consideration that it is



41

simply too easy for a Federal judge oper­
ating under Hackley to lapse, in his dis­
cretion, into a review of the record using 
the substantial evidence test . . . .
Only if a trial de novo is mandatory will 
the Federal employee be assured of the 
Congressional intent and that is a full, 
impartial review of the case in an ad­
versary context. ** Id. , at pp. 6,755-56. 
(Emphasis supplied).
Similarly, in Reynolds v. Wise, supra, the court

stated:
"Defendants earnestly assert that 

this court is limited to a review of the 
administrative record and cannot consid­
er the issue of discrimination de_ novo.
This court disagrees.

Defendants cite as authority for 
their argument statements by Senators 
Williams and Cranston made in their clos­
ing debate on the bill. While it is true 
that this language would normally indi­
cate that the Senate intended for the ju­
diciary to limit its proceeding to a re­
view of the administrative record, there 
are affirmative countervailing consider­
ations that necessitate rejection of that 
authority. First, the House version of 
the Act was adopted and not the Senate 
text . . . .  Second, the floor managers 
in conference expressly approved a mod­
ified provision that granted to individuals 
the right of private action in conformity 
with the House version of the Act . . . .  
Finally, the plain statutory language of 
the Act authorizes private actions with­
out restricting the forum court to a 
review of the administrative record."
375 F. Supp. at 148 (most emphasis 
supplied).



42

The courts reached the decisions despite their 
acknowledgment of Senator Cranston's uncorrected statement, 
which appeared to be an explicit repudiation of the right 
to a trial d£ novo for Federal employees. By the time of 
the decision in Henderson v. Defense Contract Administration 
Services Region, New York, 370 F. Supp. 180 (S.D. N.Y. 1973), 
the correction had been made and the court held:

" [T]he legislative history of the 1972 
Act supports our conclusion that the plaintiff 
is entitled to a de novo trial. Thus, Senator 
Cranston, one of the co-sponsors of the Act 
. . . categorically asserted: '. . . Federal
district court review would not be based on 
the agency and/or CSC record and would be a 
trial de novo."1 Id. , at 184.
Finally, in Griffin v. U.S. Postal Service, 7 EPD 

11 9133 (M.D. Fla. 1973) the court held simply that:
"The [1972] amendments specifically state 

that the newly authorized civil actions are to 
be governed by the provisions in the original 
act. The incorporation of these original pro­
visions makes it clear that the legislative 
intent was to provide the same rights and forms 
of relief to persons subjected to discrimlna- 
tory conduct by federal agencies as were avail­
able to persons covered by the original act.
It is the opinion of the Court, therefore, 
that the recent amendments create an inde­
pendent cause of action and that the scope 
of review in this case is the same as for 
an action brought under the original Civil 
Rights Act. As such, this action is not 
limited to a review of the administrative 
record." Id_. , at p. 6752. (Emphasis sup­
plied) .

Accord, Carreathers v. Alexander, 7 EPD 1[ 9379 (D. Colo. 1974)
at pp. 7709-10



43

These cases provide clear and convincing authority 
for the proposition that under Title VII as amended, Federal 
employees are entitled to trials de novo, and accordingly to 
class actions, to the same extent as private sector workers. 
Decisions to the contrary, including that of the District 
Court in the present case, simply do not comport with the 
language or the purpose of the 1972 Act, and should be re­
pudiated.

E. Sound Judicial Policy Supports the Right of 
Federal Employees to Maintain Trials De Novo 
and Class Actions Under Title VII_______ ____

Beyond its incompatibility with the statutory language 
or purpose of Title VII, the decision of the Court below espouses 
a dubious policy which both discourages pursuit of employment 
discrimination claims, and at the same time encourages ineffi­
cient use of administrative and judicial resources.

Unlike commercial class actions, cases brought under 
Title VII are ladened "with heavy overtones of public interest," 
and the private plaintiff in such a case acts as a "private 
attorney-general," vindicating a policy that Congress consid­
ered to be of the highest priority. Jenkins v. United Gas Corp., 
400 F.2d 28, 31, 33 (5th Cir. 1968); Bowe v. Colgate-Palmolive 
Co., supra, 416 F.2d at 719-720. Congress expressly reaffirmed 
the significance of class actions in passing the 1972 amendments 
to Title VII. See supra, p. 31. Yet the District Court has



44

eliminated this important litigation tool against institu­
tional patterns and practices of employment discrimination 
in the Federal government, and has returned Federal employees 
to the pre-1972 situation in which the only form of discrim­
ination for which they may successfully seek redress is that 

which results from "malicious intent on the part of individuals." 
See supra, p. 24 .

The District Court's decision not only leaves Federal 
employees with the inadequate remedy of individual actions; it 
discourages employees from bringing such actions. Employees 
with meritorious claims of discrimination are often unaware of 
their right to seek administrative and judicial relief. Many 
are even unaware that they have claims of discrimination at 
all, particularly in pattern and practice situations such as 
segregated job classifications which are the focus of class 
action complaints. The only protection such employees have 
is by means of a class action brought by a more informed co­
worker. Cf. Sanchez v. Standard Brands, Inc., 431 F.2d 455,
466 (5th Cir. 1970). The decision of the Court below elimin­
ates this protection.

Moreover, even employees who are aware of their 
rights may nevertheless be discouraged from bringing com­
plaints if they know that the lengthy and arduous adminis­
trative process will result only in limited relief on the



45

facts of their specific complaints, without affecting the 
underlying problems which gave rise to such complaints.
See Oatis v. Crown Zellerbach Corp., supra, 398 F.2d at 
498. At the same time, Federal agencies will have little 
incentive to comply with equal employment opportunity laws 
if they know that they will never be subject to broad 
charges of institutional discrimination. See Sanchez v. 
Standard Brands, Inc., supra, at 466. In short, the pro­
hibition against class actions by Federal employees will 
have an adverse effect on their individual complaints as 
well.

The decision of the Court below is equally ques­
tionable in terms of judicial efficiency. Requiring each 
employee to litigate a complaint separately through the 
administrative and judicial process will result in tremend­
ously wasteful duplication of proceedings which could be 
avoided if one complainant were permitted to bring suit 
on behalf of a class of similarly situated employees. Oatis 
v. Crown Zellerbach Corp., supra, at 498. The dimensions 
of this waste of resources is already apparent in this dis­
trict. Three cases have been brought in district court 
alleging employment discrimination at the Library of Congress. 
Williams v. Mumford, 6 EPD 1[ 8785 (D.D.C. 1973) , appeal
pending, D.C. Cir0 No. 73-2120; Roberts v. Mumford, 8 EPD



47

A. Having Raised Class Allegations at the 
Administrative Level, Appellants Are 
Entitled to Raise Class Allegations 
in District Court______________________

The Court below conceded that despite the general 
strictures against trials de novo, Federal employees are 
entitled to plenary proceedings in district court where the 
employing agency or the CSC has not taken action within 180
days of filing of charges of discrimination by the complainant.

16/
App. p. 63. Judge Smith determined, however, that trials
de novo in such instances could not support class actions, for 
their only purpose is to protect individuals from agency 
failure to act on their complaints. App. p. 63. This de­
cision ignored the crucial fact that in the present case, the 
administrative complaint upon which the agency failed to act 

was itself a class complaint.
When Nell Pendleton filed her charge of discrimina­

tion with Walter Reed, she did not simply complain about 
her removal as Chief EEO officer, but also included specific 
and factually supported allegations of patterns and practices 
of discrimination at Walter Reed. These allegations were 
integrally related to her individual complaint, for she

16/ Actually, the statute permits full court review if after 
T80 days the appropriate agency has not taken final action on 
a complaint of discrimination. Section 717(c)) 42 U.S.C. 
2000e-16(c). Thus, complete inaction by the agency is not 
a prerequisite to court review under this provision.



48

charged that her removal was the direct result of her efforts 
to alleviate such class discrimination. Nevertheless, Walter 
Reed refused to permit her to proceed with these charges, 
and instead bifurcated the complaint and relegated the class 
allegation to a virtually meaningless self-investigation by 
the Walter Reed administration. The resulting "decision" 
was appealed to the CSC, which has not yet completed its own 
investigations of Ms. Pendleton's charges.

Ry any measure, Ms. Pendleton's complaint was not
acted upon within 180 days of its filing. She filed her
"informal" complaint on February 5, 1973, and her "formal"
complaint on March 12, 1973. It was not until December,
1973 that Walter Reed made its "final decision" on the class
allegations —  over 250 days from the filing of the formal
complaint. Thus, under the plain words of Section 717(c),
and under the District Court's own analysis that trials de
novo are permissible in cases of agency inaction, Ms.
Pendleton is entitled to a plenary court hearing on her

17/
allegations of class-wide discrimination.

17/ Appellant Helen Martin has equal standing to raise class 
allegations in this case. Her administrative complaint con­
tained class-wide pattern and practice allegations similar 
to those asserted by Ms. Pendleton, but the Army dismissed 
her complaint without ever investigating or considering 
these charges.



49

This conclusion is directly supported not only
by the favorable cases discussed above (supra, p.40 ), but
also by cases in which trials de novo or class actions have
been denied to Federal employees. In Hackley v. Johnson,
supra, for example, Judge Gesell noted that the case could
probably not proceed as a class action because:

"It appears to the Court that [plain­
tiff's] complaint did not present, nor did 
the agency sua sponte investigate this 
matter as a class action problem . . .."
360 F. Supp. at 1254 n.ll.
Similarly, in Williams v. Mumford, supra, the court

stated:
"There is yet a third independent 

ground upon which the motion to certify 
the class must be denied. Although the 
case is brought as a class action alleging 
across the board racially discriminatory 
practices throughout the Library [of 
Congress], neither plaintiff raised any 
allegation of class discrimination in 
his administrative complaint of discrim­
ination before the Library . . . .  As 
such, the complaint should be limited 
to the allegations made at the adminis­
trative level." 6 EPD 11 8785, at p. 5386.
(Emphasis supplied).
The court in Pointer v. Sampson, 7 EPD 1[ 9326 (D. D.C.

1974) was even more explicit. It first noted that:
"Agency inaction would allow the 

Federal employee to come into court with­
out [an administrative] record. In 
such instances a trial on the employee's 
charges could be held . . .." Id., at 
p. 7508 n.30.



50

The court in that case then held that a class action could 
not be maintained unless an administrative record existed 
for each class member, but commented:

"Again, it must be noted this reason­
ing is inapplicable where agency inaction 
is the force that initiates the employees' 
journey to court." Id., at p. 7509 n.34.

Accord, Handy v. Gayler, 364 F. Supp. 676, 679 (D. Md. 1973).
It is therefore clear that regardless of the avail­

ability of Title VII class actions to Federal employees as 
a general matter, such actions are appropriate in circumstances 
where: (1) the employee's administrative complaint raises
allegations of class-wide discrimination, and (2) the employ­
ing agency and/or CSC fails to take final action on such 
allegations within 180 days of the filing of the charge.
Both criteria have been met here, and the case may thus be 
maintained as a class action.

B. Appellants Have Independent Standing to
Maintain a Class Action Pursuant to § 1981 
of the Civil Rights Act of 1866, As Amended

Regardless of the permissibility of class actions 
by Federal employees under the provisions of Title VII, the 
failure of the District Court even to consider appellant's 
right to maintain a class action pursuant to 42 U.S.C. § 1981 
was erroneous. It is established in this Circuit and else­
where that the standing of private sector employees to main­
tain employment discrimination actions under §1981 is not



51

conditioned upon the exhaustion or even initiation of the 
administrative remedies under Title VII. E.g., Macklin v. 
Spector Freight Systems, Inc. 156 U.S. App. D.C. 69, 83,
478 F.2d 979, 993 (D.C. Cir. 1973); Caldwell v. National 
Brewing Co., 443 F.2d 1044, 1046 (5th Cir. 1971). Several 
recent cases have applied the principles of these decisions 
to permit trials de novo and class actions by Federal

18/
employees. Bowers v. Campbell, No. 72-1273 (9th Cir. 1974); 
Penn v. Schlesinger, 490 F.2d 700 (5th Cir. 1973), rev'd 
per curiam sub nom. Penn v. Laird, 8 EPD 11 9543 (5th Cir.
1974) (en banc); cf. District of Columbia v. Carter,
409 U.S. 418, 422 (1973) (applying § 1981's companion pro­
vision, 42 U.S.C. § 1982).

The court in Penn v . Schlesinger, supra, permitted 
individual employees and the NAACP to bring a massive class 
action against employment discrimination in 17 Federal agencies 
operating in Alabama, stating:

" . . . [W]e hold the opinion that the 
complaint states a claim upon which relief 
can be granted under Section 1981 . . . .

Our decision in Sanders v. Dobbs Houses,
Inc. 431 F .2d 1097 (1970), held that Section 
1981 provided a cause of action to a black 
employee allegedly discharged solely because 
of her race. Thus this Section creates a 
cause of action for employment contract

18/ The text of this as yet unreported decision is reprint­
ed in the addendum to the brief at p. 9a. All page citations 
are to the addendum.



52

discrimination against private employers.
Though no decision directly in point has 
been brought to our attention, we think 
it clear that the rationale of the Dobbs 
House decision applies to employment 
discrimination by federal officials as 
well as by private employers.1' 490 
F.2d at 702 (Emphasis supplied). 19/
Bowers v. Campbell, supra, though not a class ac­

tion, is equally pertinent to the present case. The plain­
tiff in Bowers brought suit under § 1981 against her employ­
ing agency, the U.S. Air Station in Alameda, California, for 
race discrimination. Infra p. 9a. The district court 
found that its jurisdiction was limited to review of the 
administrative record, and on this basis held that there 
was sufficient evidence in the record to support the agency 
dismissal of her claim. Infra p. 10a.

The court of appeals reversed. First, relying on 
Macklin v. Spector Freight Systems, supra, and District of 
Columbia v. Carter, supra, it held:

19/ The Fifth Circuit reversed itself en banc on the ground 
that the plaintiff employees had not exhausted their adminis­
trative remedies. Penn v. Laird, supra, 8 EPD 11 9543. We 
believe that this decision is inconsistent with Macklin v. 
Spector Freight Systems, supra, and with the Fifth Circuit's 
own decision in Caldwell v. National Brewing Co., supra, and 
that accordingly it should be disregarded. In any event, 
however, the reversal leaves intact the principle that Federal 
employees may maintain class actions against their employing 
agencies under § 1981.



53

"Bowers' complaint stated a claim for 
relief under section 1981. Contrary to 
respondents' contention, section 1981 applies 
to employment discrimination by federal 
officials; it is not confined to state or 
private action." Infra, p. 11a.

The court then held that, in view of the inadequacy 
of administrative remedies against employment discrimination, 
and the Supreme Court's holding in Alexander v. Gardner-Denver 
P° » r supra, that an employee's right to bring an action under 
Title VII is not foreclosed by prior submission of a claim to 
arbitration, review of the administrative record was too re­
strictive a test under § 1981 :

"To assure that both the complainant and 
the appropriate government officials take 
seriously their responsibilities to attempt 
to resolve charges of discrimination without 
resort to litigation, the administrative de­
cision and the record on which it is based 
must be accorded at least as much weight in 
the district court as that given to arbitral 
decision in Alexander v. Gardner-Denver Co.
On the other hand, the district court must 
bear the ultimate responsibility for deter­
mining the facts underlying the dispute.
Imposition of a lesser duty would drain the 
significance from continuing access to 42 
U.S.C. § 1981 and 28 U.S.C. § 1343T4H 
The district court cannot discharge its 
burden merely by deciding that administra­
tive findings are supported by substantial 
evidence." Infra p. 19a~T (Emphasis 
supplied).

Thus, Bowers requires a trial de novo under § 1981, 
with appropriate evidentiary weight given to the administrative 
record. Such a rule would permit class actions as well, parti­
cularly in cases such as the present one in which class allegations



54

were raised at the administrative level. Under the rationale 
of Bowers, then, appellants here may go forward with a class 
action under § 1981 without regard to their rights under 
Title VII.

IV. Each Member of an Affected Class Need Not 
Comply With the Administrative Procedures 
in Order to Join in a Class Action Under 
Title VII_________________________________

As a corollary to the denial of the class action, 
the District Court dismissed the case as to three named 
plaintiffs who had not filed administrative charges with 
Walter Reed. App. p. 64. While this dismissal is consis­
tent with the premise that Federal employees may not main­
tain trials de novo and class actions under Title VII, it 

has already been shown that the initial premise is invalid. 
Accordingly, under well-recognized principles in this Circuit 
and elsewhere, as long as one member of the class has met 
the administrative prerequisites for maintaining a civil 
action under Title VII, any other class member may join in 
the suit. E.g., Macklin v. Spector Freight Systems, Inc., 
supra, 156 U.S. App. D.C. at 75 n.ll, 478 F.2d at 985 n.ll
(1973); Oatis v. Crown Zellerbach Corp., supra, 398 F.2d 
at 499. Since at least four class members in the present 
case have standing to maintain the action, the remaining 
class members, including the three whose cases were dismissed/ 
may join as plaintiffs.



CONCLUSION

The order of the District Court should be reversed 
and the case should be remanded for a determination whether 
plaintiffs have met the requirements for maintaining a class 
action as set forth in Rule 23 of the Federal Rules of Civil 
Procedure.

Respectfully submitted,

RODERIC V.O. BOGGS 
Washington Lawyers1 Committee 

for Civil Rights Under Law 
733 - Fifteenth Street, N.W. 
Washington, D.C. 20005

Of Counsel:
DAVID J. CYNAMON 
Covington & Burling 
888 Sixteenth Street, N.W. 
Washington, D.C. 20006 Attorney for Appellants



ADDENDUM



la

Section 706 of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. §2000e-5, provides:

(a) The [Equal Employment Opportunity] Commission 
is empowered, as hereinafter provided, to prevent any person 
from engaging in any unlawful employment practice as set forth 
in section 2000e-2 or 2000e-3 of this title.

(b) Whenever a charge is filed by or on behalf of a 
person claiming to be aggrieved, or by a member of the Commission, 
alleging that an employer, employment agency, labor organization, 
or joint labor-management committee controlling apprenticeship
or other training or retraining, including on-the-job training 
programs, has engaged in an unlawful employment practice, the 
Commission shall serve a notice of the charge (including the date, 
place and circumstances of the alleged unlawful employment practice) 
on such employer, employment agency, labor organization, or joint 
labor-management committee (hereinafter referred to as the 
"respondent") within ten days, and shall make an investigation 
thereof. Charges shall be in writing under oath or affirmation 
and shall contain such information and be in such form as the 
Commission requires. Charges shall not be made public by the 
Commission. If the Commission determines after such investiga­
tion that there is not reasonable cause to believe that the 
charge is true, it shall dismiss the charge and promptly notify 
the person claiming to be aggrieved and the respondent of its 
action. In determining whether reasonable cause exists, the Com­
mission shall accord substantial weight to final findings and 
orders made by State or local authorities in proceedings com­
menced under State or local law pursuant to the requirements of 
subsections (c) and (d) of this section. If the Commission 
determines after such investigation that there is reasonable 
cause to believe that the charge is true, the Commission shall 
endeavor to eliminate any such alleged unlawful employment 
practice by informal methods of conference, conciliation, and 
persuasion. Nothing said or done during and as a part of such 
informal endeavors may be made public by the Commission, its 
officers or employees, or used as evidence in a subsequent pro­
ceeding without the written consent of the persons concerned.
Any person who makes public information in violation of this 
subsection shall be fined not more than $1,000 or imprisoned 
for not more than one year, or both. The Commission shall 
make its determination on reasonable cause as promptly as



2a

possible and, so far as practicable, not later than one hundred 
and twenty days from the filing of the charge or, where applica­
ble under subsection (c) or (d) of this section, from the date 
upon which the Commission is authorized to take action with 
respect to the charge.

(c) In the case of an alleged unlawful employment 
practice occurring in a State, or political subdivision of a 
State, which has a State or local law prohibiting the unlawful 
employment practice alleged and establishing or authorizing a 
State or local authority to grant or seek relief from such 
practice or to institute criminal proceedings with respect 
thereto upon receiving notice thereof, no charge may be filed 
under subsection (b) of this section by the person aggrieved 
before the expiration of sixty days after proceedings have been 
commenced under the State or local law, unless such proceedings 
have been earlier terminated, provided that such sixty-day period 
shall be extended to one hundred and twenty days during the 
first year after the effective date of such State or local law.
If any requirement for the commencement of such proceedings
is imposed by a State or local authority other than a requirement 
of the filing of a written and signed statement of the facts 
upon which the proceeding is based, the proceeding shall be 
deemed to have been commenced for the purposes of this sub­
section at the time such statement is sent by registered mail 
to the appropriate State or local authority.

(d) In the case of any charge filed by a member of 
the Commission alleging an unlawful employment practice occurring 
in a State or political subdivision of a State which has a 
State or local law prohibiting the practice alleged and estab­
lishing or authorizing a State or local authority to grant or 
seek relief from such practice or. to institute criminal pro­
ceedings with respect thereto upon receiving notice thereof,
the Commission shall, before taking any action with respect to 
such charge, notify the appropriate State or local officials 
and, upon request, afford them a reasonable time, but not less 
than sixty days (provided that such sixty-day period shall be 
extended to one hundred and twenty days during the first year 
after the effective day of such State or local law), unless a 
shorter period is requested, to act under such State or local 
law to remedy the practice alleged.

(e) A charge under this section shall be filed within 
one hundred and eighty days after the alleged unlawful employment 
practice occurred and notice of the charge (including the date, 
place and circumstances of the alleged unlawful employment



3a

practice) shall be served upon the person against whom such 
charge is made within ten days thereafter, except that in a case 
of an unlawful employment practice with respect to which the 
person aggrieved has initially instituted proceedings with a 
State or local agency with authority to grant or seek relief 
from such practice or to institute criminal proceedings with 
respect thereto upon receiving notice thereof, such charge 
shall be filed by or on behalf of the person aggrieved within 
three hundred days after the alleged unlawful employment practice 
occurred, or within thirty days after receiving notice that the 
State or local agency has terminated the proceedings under the 
State or local law, whichever is earlier, and a copy of such 
charge shall be filed by the Commission with the State or local 
agency.

(f) (1) If within thirty days after a charge is filed 
with the Commission or within thirty days after expiration of 
any period of reference under subsection (c) or (d) of this 
section, the Commission has been unable to secure from the 
respondent a conciliation agreement acceptable to the Commission, 
the Commission may bring a civil action against any respondent 
not a government, governmental agency, or political subdivision 
named in the charge. In the case of a respondent which is a 
government, governmental agency, or political subdivision, if 
the Commission has been unable to secure from the respondent a 
conciliation agreement acceptable to the Commission, the Com­
mission shall take no further action and shall refer the case 
to the Attorney General who may bring a civil action against 
such respondent in the appropriate United States district court. 
The person or persons aggrieved shall have the right to inter­
vene in a civil action brought by the Commission or the Attorney 
General in a case involving a government, governmental agency, 
or political subdivision. If a charge filed with the Commission 
pursuant to subsection (b) of this section is dismissed by the 
Commission, or if within one hundred and eighty days from the 
filing of such charge or the expiration of any period of reference 
under subsection (c) or (d) of this section, whichever is later, 
the Commission has not filed a civil action under this section 
or the Attorney General has not filed a civil action in a case 
involving a government, governmental agency, or political 
subdivision, or the Commission has not entered into a concilia­
tion agreement to which the person aggrieved is a party, the 
Commission, or the Attorney General in a case involving a 
government, governmental agency, or political subdivision, shall 
so notify the person aggrieved and within ninety days after the 
giving of such notice a civil action may be brought against 
the respondent named in the charge (A) by the person claiming 
to be aggrieved or (B) if such charge was filed by a member of



4a

the Commission, by any person whom the charge alleges was 
aggrieved by the alleged unlawful employment practice. Upon 
application by the complainant and in such circumstances as 
the court may deem just, the court may appoint an attorney for 
such complainant and may authorize the commencement of the 
action without the payment of fees, costs, or security. Upon 
timely application, the court may, in its discretion, permit 
the Commission, or the Attorney General in a case involving a 
government, governmental agency, or political subdivision, to 
intervene in such civil action upon certification that the 
case is of general public importance. Upon request, the court 
may, in its discretion, stay further proceedings for not more 
than sixty days pending the termination of State or local pro­
ceedings described in subsections (c) or (d) of this section or 
further efforts of the Commission to obtain voluntary compliance.

(2) Whenever a charge is filed with the Commission 
and the Commission concludes on the basis of a preliminary in­
vestigation that prompt judicial action is necessary to carry 
out the purposes of this Act, the Commission, or the Attorney 
General in a case involving a government, governmental agency, 
or political subdivision, may bring an action for appropriate 
temporary or preliminary relief pending final disposition of 
such charge. Any temporary restraining order or other order 
granting preliminary or temporary relief shall be issued in 
accordance with rule 65 of the Federal Rules of Civil Procedure. 
It shall be the duty of a court having jurisdiction over pro­
ceedings under this section to assign cases for hearing at the 
earliest practicable date and to cause such cases to be in every 
way expedited.

(3) Each United States district court and each United 
States court of a place subject to the jurisdiction of the United 
States shall have jurisdiction of actions brought under this 
subchapter. Such an action may be brought in any judicial 
district in the State in which the unlawful employment practice 
is alleged to have been committed, in the judicial district in 
which the employment records relevent to such practice are 
maintained and administered, or in the judicial district in 
which the aggrieved person would have worked but for the alleged 
unlawful employment practice, but if the respondent is not found 
within any such district, such an action may be brought within 
the judicial district in which the respondent has his principal 
office. For purposes of sections 1404 and 1406 of Title 28,
the judicial district in which the respondent has his principal 
office shall in all cases be considered a district in which the 
action might have been brought.



5a

(4) It shall be the duty of the chief judge of the 
district (or in his absence, the acting chief judge) in which 
the case is pending immediately to designate a judge in such 
district to hear and determine the case. In the event that no 
judge in the district is available to hear and determine the 
case, the chief judge of the district, or the acting chief 
judge, as the case may be, shall certify this fact to the 
chief judge of the circuit (or in his absence, the acting 
chief judge) who shall then designate a district or circuit 
judge of the circuit to hear and determine the case.

(5) It shall be the duty of the judge designated 
pursuant to this subsection to assign the case for hearing at 
the earliest practicable date and to cause the case to be in 
every way expedited. If such judge has not scheduled the case 
for trial within one hundred and twenty days after issue has 
been joined, that judge may appoint a master pursuant to rule 53 
of the Federal Rules of Civil Procedure.

(g) If the court finds that the respondent has in­
tentionally engaged in or is intentionally engaging in an unlaw­
ful employment practice charged in the complaint, the court may 
enjoin the respondent from engaging in such unlawful employment 
practice, and order such affirmative action as may be appropriate, 
which may include, but is not limited to, reinstatement or hiring 
of employees, with or without back pay (payable by the employer, 
employment agency, or labor organization, as the case may be, 
responsible for the unlawful employment practice), or any other 
equitable relief as the court deems appropriate. Back pay 
liability shall not accrue from a date more than two years prior 
to the filing of a charge with the Commission. Interim earnings 
or amounts earnable with reasonable diligence by the person or 
persons discriminated against shall operate to reduce the back 
pay otherwise allowable. No order of the court shall require
the admission or reinstatement of an individual as a member of 
a union, or the hiring, reinstatement, or promotion of an 
individual as an employee, or the payment to him of any back 
pay, if such individual was refused admission, suspended, or 
expelled, or was refused employment or advancement or was sus­
pended or discharged for any reason other than discrimination 
on account of race, color, religion, sex, or national origin 
or in violation of section 2000e-3(a) of this title.

(h) The provisions of sections 101 to 115 of Title 29 
shall not apply with respect to civil actions brought under this 
section.



6a

(i) In any case in which an employer, employment 
agency, or labor organization fails to comply with an order
of a court issued in a civil action brought under this section, 
the Commission may commence proceedings to compel compliance 
with such order.

(j) Any civil action brought under this section and 
any proceedings brought under subsection (i) of this section 
shall be subject to appeal as provided in sections 1291 and 1292, 
Title 28.

(k) In any action or proceeding under this subchapter 
the court, in its discretion, may allow the prevailing party, 
other than the Commission or the United States, a reasonable 
attorney's fee as part of the costs, and the Commission and the 
United States shall be liable for costs the same as a private 
person.

Section 717 of the Civil Rights Act of 1964, as amended, 
42 U.S.C. §2000e-16, provides:

(a) All personnel actions affecting employees or 
applicants for employment (except with regard to aliens employed 
outside the limits of the United States) in military departments 
as defined in section 102 of Title 5, in executive agencies (other 
than the General Accounting Office) as defined in section 105 of 
Title 5 (including employees and applicants for employment who 
are paid from nonappropriated funds), in the United States Postal 
Service and the Postal Rate Commission, in those units of the 
Government of the District of Columbia having positions in the 
competitive service, and in the Library of Congress shall be
made free from any discrimination based on race, color, religion, 
sex, or national origin.

(b) Except as otherwise provided in this subsection, 
the Civil Service Commission shall have authority to enforce the 
provisions of subsection (a) of this section through appropriate 
remedies, including reinstatement or hiring of employees with
or without back pay, as will effectuate the policies of this 
section, and shall issue such rules, regulations, orders and 
instructions as it deems necessary and appropriate to carry out 
its responsibilities under this section. The Civil Service 
Commission shall —



7a

(1) be responsible for the annual review and approval 
of a national and regional equal employment opportunity plan 
which each department and agency and each appropriate unit 
referred to in subsection (a) of this section shall submit 
an order to maintain an affirmative program of equal employ­
ment opportunity for all such employees and applicants for 
employment.

(2) be responsible for the review and evaluation of 
the operation of all agency equal employment opportunity 
programs, periodically obtaining and publishing (on at 
least a semiannual basis) progress reports from each such 
department, agency, or unit; and

(3) consult with an solicit the recommendations of 
interested individuals, groups, and organizations relating 
to equal employment opportunity.

The head of each such department, agency, or unit shall comply 
with such rules, regulations, orders, and instructions which shall 
include a provision that an employee or applicant for employment 
shall be notified of any final action taken on any complaint 
of discrimination filed by him thereunder. The plan submitted 
by each department, agency, and unit shall include, but not be 
limited to —

(1) provision for the establishment of training and 
education programs designed to provide a maximum opportunity 
for employees to advance so as to perform at their highest 
potential; and

(2) a description of the qualifications in terms of 
training and experience relating to equal employment 
opportunity for the principal and operating officials
of each such department, agency, or unit responsible 
for carrying out the equal employment opportunity program 
and of the allocation of personnel and resources proposed 
by such department, agency, or unit to carry out its equal 
employment opportunity program.

With respect to employment in the Library of Congress, authorities 
granted in this subsection to the Civil Service Commission shall 
be exercised by the Librarian of Congress.



8a

(c) Within thirty days of receipt of notice of 
final action taken by a department, agency, or unit referred 
to in subsection (a) of this section, 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 until such time as final action may be taken by a de­
partment, agency, or unit, an employee or applicant for employ­
ment, if aggrieved by the final disposition of his complaint,
or by failure to take final action on his complaint, may file 
a civil action as provided in section 2000e-5 of this title, 
in which civil action the head of the department, agency, or 
unit, as appropriate, shall be the defendant.

(d) The provisions of section 2000e-5(f) through (k) 
of this title, as applicable, shall govern civil actions brought 
hereunder.

(e) Nothing contained in this Act shall relieve any 
Government agency or official of its or his primary responsi­
bility 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 
opportunity in the Federal Government.