Salone v USA Petition for Writ of Centiorari

    I n  the

iatprpmj? (ta r t  of tljp United §>tatra
October Term, 1974 

No..........

A nthony M. Salone, J r .,

v.
Petitioner,

United S tates o e  A merica, et al.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

Jack Greenberg 
James M. Nabrit, III 
Charles S tephen Ralston 
Melvyn IjEVENTHAL 
Barry L. Goldstein 
B ill L ann Lee 
Eric S chnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Petitioner



I N D E X

PAGE

Opinions B elow ....................................................................  1

Jurisdiction ........      1

Question Presented.......................................   2

Statutory Provisions Involved ....         2

Statement of the Case .......................................     3

Reasons for Granting the Writ ....................................... 8

I. The Decision of the Tenth Circuit Is in Conflict 
With Two Courts of Appeals and Numerous 
District Courts ..........................................................  8

II. The Question Presented Is of Substantial Im­
portance ...................................   18

III. The Decision of the Tenth Circuit Is Clearly
Erroneous ...................................   24

Conclusion.................................................................................... 33

A ppendix—

Opinion of United States District Court ...............   la
Opinion of United States Court of Appeals for 
the Tenth Circuit .........    8a



11

Table of A uthorities

Cases:  page

Abrams v. Johnson, 7 EPD 1j 9380 (N.D. Ohio 1974) .... 13,
14,15,17,18

Alexander v. Gardner-Denver, 415 U.S. 36 (1974) ....17,18,
25, 26,27

Allen v. Veterans Administration, 8 EPD H 9783 (W.D.
Pa. 1974)  ___     11,13,16,19

Archuleta y. Callaway, Mo. 74-M-213 D. Colo......... 13,14, 23

Baca v. Butz, 376 F.Supp. 1005 (D. N.Mex. 1974)  13,16
Bernardi v. Butz, 7 EPD 9381 (N.D. Cal. 1974)  12,19
Beverly v. Lone Star Construction Corp., 437 F.2d 1136

(5th Cir. 1971) ........... ........ ................ ....... .... .............. . 24
Boston v. Naval Air Station, 10 PEP Cas. 649 (E.D.

Va. 1974) ......       11,13,15,17
Bowers v. Campbell, 8 EPD 9752 (9th Cir. 1974) .... 10 
Brooks v. Lynn, 10 PEP Cas. 638 (W.D. Okl. 1974) .... 13

Caro v. Schultz, 7th Cir. No. 74-1728 ..... .......................  18
Caro v. Schultz, 9 EPD fi 9987 (N.D. 111. 1975) .......12,14,

19, 22
Carreathers v. Alexander, 9 EPD ]\ 9858 (D. Colo.

1974) ............ ..... .......... ..................................................13,14
Carreathers v. Alexander, 7 EPD 9379, 9 EPD ff 9858

(D. Colo. 1974) .......... ....................................................15,18
Cates v. Johnson, 377 F.Supp. 1145 (W.D. Pa. 1974) ..11,19 
Chandler v. Johnson, 9 EPD H 10,123 (9th Cir.

1975) .................................. ............................ .....10,12,16,17
Chandler v. Johnson, 7 EPD 9139 (C.D. Cal. 1973) .... 19 
Chisholm v. United States Postal Service, No. C-C-73-

148, W.D. N.C......... ...................... 11,14,15,16,17,23
Coopersmith v. Johnson, 7 EPD 9388 (D. D.C. 

1974) ....................     11,16,19



Ill

Dunlop v. Bachowski, 43 U.S.L.W. 4669 (1975) ........... 30

Eastland v. Tennessee Valley Authority, 5th Cir. No.
75-1855  ..........................................................................  18

Eastland v. Tennessee Valley Authority, 9 EPD If 9927
(N.D. Ala. 1975) ..... .......... ............... ...................... 12,14, 22

Ettinger v. Johnson, 10 FEP Cas. 642 (E.D. Pa.
1974) ......................... ....... .............................. ................ 11,19

Evans v. Johnson, 7 EPD 1)9351 (C.D. Cal. 1974) ....11,22

Pekete v. United States Steel Corp., 424 F.2d 331 (3d
Cir. 1970) ..................................... ....................................  24

Ficklin v. Sabatini, 8 EPD If 9829 (E.D. Pa. 1974) ....12,14,
16,22

PAGE

Fisher v. Brennan, 10 FEP Cas. 685 (E.D. Tenn. 1974) 19
Flowers v. Local 6, Laborers International Union of

North America, 431 F.2d 205 (7th Cir. 1970) ........ . 24
Foster v. United States Civil Service Commission, 9 

EPD 1J9887 (S.D. Tex. 1974) ....... .................. ............  11

Gautier v. Weinberger, 6 EPD If 9001 (D. D.C. 1973) ..12,16,
19, 20

Griffin v. United States Postal Service, 7 EPD If 9133
(M.D. Fla. 1973) .................................. ............ ...... 11,16,17

Guilday v. United States Department of Justice, 8 EPD 
1f 9817 (D. Del. 1974) .... ................. ............. ...12,14,17,18

Hackley v. Johnson, 360 F.Supp. 1247 (D. D.C.
1973) ...................................... 10,12,13,14,15,17,18,19, 22

Haire v. Callaway, 9 FEP Cas. 168 (E.D. Mo. 1974) ....13,14,
16,19

Handy v. Gayler, 364 F.Supp. 676 (D. Md. 1973) .....10,11,
12,16,17,18, 22

Harris v. Ulanich, No. 73-369-N, E.D. Va. ....11,14,15,17, 21



IV

Henderson v. Defense Contract Administration, 370
F.Supp. 180 (S.D. N.Y. 1973) ........ ................... ...10,11,17

Hill v. Seamens, 9 EPD ff 10,095 (S.D. Tex. 1975) .......  11
Hockett v. Administrator of Veterans Affairs, 8 EPD

1J9645 (N.D. Ohio 1974) ........... ...... ............. ........... .. 13
Hunt v. Schlesinger, 9 EPD ]\ 10,024 (W.D. Tenn. 1974) 20

Jackson v. United States Civil Service Commission,
379 F.Supp. 589 (S.D. Tex. 1973) ...............................11,16

Johnson v. Railway Express Agency, 43 U.S.L.W. 4583
(1975) ....................................................................... ........  24

Johnson v. United States Postal Service, 8 EPD If 9548
(N.D. Fla. 1974) ....... ........................... ................ ........ . 11

Johnson v. U.S. Postal Service, 364 F.Supp. 37 (N.D.
Fla. 1973) ........... .............................. .................... ....... 11,19

Laurel v. United States, 5tli Cir. No. 74-3746 ...... ...... . 18
Leinster v. Engman, 8 EPD If 9774 (D. D.C. 1974) ..14,16,19 
Levens v. General Services Administration, 10 FEP 

Cas. 493 (W.D. Mo. 1975) .......................................... 11, 21

Marshall v. United States Federal Highway Adminis­
trator, 7 EPD If 9184 (D. D.C. 1973) .... ......... .....12,16,19

McDonnell-Douglas Corp. v. Green, 411 U.S. 792
(1973) .......... ............. .......2, 8, 9,11,13,15,17,18, 20, 24, 32

McGowan v. United States Information Agency, 8 EPD
ff 9787 (D. D.C. 1974) ........... ....................... 12. 15. 16.19

McLaughlin v. Callaway, 9 EPD ffff 9888, 10,098 (S.D.
Ala. 1974) .................................................................. 12, 21, 22

McLaughlin v. Callaway, 382 F.Supp. 885 (S.D. Ala.
1974) ........ ........... .............................................................. 17

Morton v. Mancari, 41 L.Ed.2d 290 (1974) ............. ..... 27, 28

Newman v. Piggie Park Enterprises, 390 U.S. 400 
(1968) ..... ............................... ........ ......... ................ .......  30

PAGE



V

Nimitz v. Berzak, 7 EPD ff 9273 (E.D. La. 1974) ..... 12,19

Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 
1968) ................. ................................................................. 23

Pendleton v. Schlesinger, 8 EPD U 9598 (D. D.C.
1974) ....................................-............................... 13,14,16,22

Pointer v. Sampson, 7 EPD If 9326 (D. D.C. 1974) .... . 22
Pointer v. Sampson, 62 F.R.D. 689 (D. D.C. 1974) ....13,16 
Polcover v. Secretary of the Treasury, 477 F.2d 1223 

(D.C. Cir. 1973) ....... ........................ *............ ................  16

Reynolds v. Wise, 8 EPD 9777 (N.D. Tex. 1973) 11,17, 21 
Richardson y. Hampton, 373 F.Supp. 833 (D. D.C.

1974) ......... ........................ ....... ............ ....... ............ . 13
Richerson v. Fargo, 64 F.R.D. 393 (E.D. Pa. 1974) .... 13
Richerson v. Fargo, 8 EPD 1f 9751 (E.D. Pa. 1974) .....  22
Richerson v. Fargo, 10 FEP Cas. 862 (E.D. Pa. 1975) .. 19 
Roberts v. Mumford, 8 EPD ff 9692 (D. D.C. 1974) ....16,19
Robinson v. Klassen, 9 EPD If 9954 (E.D. Ark. 1974) . . . . . .11,

14,16
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir

1971) ........................................ .................. ......................  24
Robinson v. Warner, 8 EPD ff 9542 (D. D.C. 1974) ....11 , 21 
Roney v. Saxbe, 8 EPD If 9587 (D. D.C. 1974) ....12,16,19, 20 
Russell v. Johnson, 10 FEP Cas. 924 (W.D. Pa. 1975) ....12,

16.19

Salone v. United States, 7 EPD 9376 (W.D. Okl.
1974) -------------- ---------------------- ..9,10,12,13,16,17,18,19

Smith y. Gunther, 9 EPD If 9915 (D. D.C. 1975) ...12,14,19 
Smith v. Snyder, 381 F.Supp. 1083 (E.D. Pa, 1974) ...11, 14,

16.19
Spencer v. Richardson, 6 EPD ff 8906 (D. D.C. 1973) .15,17

PAGE



VI

Spencer v. Schlesinger, 374 F.Supp. 840 (D, D.C.
1974) .......... ...................... ................. ........ ........ 12,14,15,16

Sperling- v. United States, 9 EPD 10,100 (3d Cir.
1975) .............. .............. ........... ............ .....9, io, 11,13,16,17

Sperling v. United States, 7 EPD |f 9274 (D. N.J. 1974) 19
Swain v. Callaway, 5th Cir. No. 75-2002 ........... ......... . 18
Sylvester v. United States Postal Service, No. 73-H-

220, S.D. Tex............ ............................. ........ 11,14,16,17, 23

Thomas v. Department of State, 8 EPD U 9622 (D. D.C.
1971) ...................- ..................... - .............. ....... ..... 13,14,19

Thompson v. Department of Justice, 360 F.Supp. 255
(N.D. Cal. 1973) ......... ........................... ....... ......... 10,15,18

Thompson v. Department of Justice, 372 F.Supp. 762
(N.D. Cal. 1974) ....... ................ .................. 12,15,18,19, 20

Tomlin v. Air Force Medical Center, 369 F.Supp. 353 
(S.D. Ohio 1974) ....... ..................... ..............................12,19

Williams v. Mumford, 6 EPD 8785 (D. D.C. 1973) ..12, 22 
Wormley v. Department of the Navy, 8 EPD Cas. 1008 

(N.D. Cal. 1974) ......................................... .......13,15,19,20

Statutes and Regulations:

5 U.S.C. § 706 ......... ...... .................... ........ ........ 26, 28, 29, 30

PAGE

12 U.S.C. § 1848 .............     29

15 U.S.C. § 21(c) .................................    28

15 U.S.C. § 45 ............................      28

15 U.S.C. § 522 ........ ..........   28

21 U.S.C. § 348(g) (2) ...........        29

21 U.S.C. § 371(f) (4) ...................................................    29



V ll

28 U.S.C. § 1331 .........       26

28 U.S.C. § 1343(4) ................         26

28 U.S.C. § 1346 .....................................      26

28 U.S.C. § 1361 .....         26

29 U.S.C. § 160(e) .....      29

42 U.S.C. § 1981 ..............................      26

49 U.S.C. § 16(2) .....................         29

5 C.F.E. § 713.221(b) (2) ..................................... ...........  7

5 C.F.R. § 213.251 ............. ........ ..... ...................... ..........  22

Legislative Materials:

S. Rep. No. 92-415 ................ ................................24, 27, 28, 31

H.R. Rep. No. 92-238 ..................... ............... ..... 24, 27, 28, 31

117 Cong. Rec............................ ......... .... ........... ....... ....... 29, 31

118 Cong. Ree............................. ...... ....... ............. 25, 29, 30, 31

S. 2515, 91st Cong., 1st Sess....... ....................     29

S. 2617, 92nd Cong., 1st Sess. ..........       30

H.R. 1746, 92nd Cong., 1st Sess..................... ....................  29

H.R. 6760, 92nd Cong., 1st Sess. ..............   30

Other Sources:

PAGE

United States Civil Service Commission, Discrimina­
tion Complaints Handbook .............. ....... .......... ......... 23



I n' t h e

Bnpmnt (tart of %  In M  flairs
October Teem, 1974 

No..........

A nthony M. Salone, Jr.,

v.
Petitioner,

U nited States op A merica, et al.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

The petitioner, Anthony Salone, Jr., respectfully prays 
that a Writ of Certiorari issue to review the judgment 
and opinion of the United States Court of Appeals for the 
Tenth Circuit entered in this proceeding on February 21, 
1975.

Opinions Below

The opinion of the Court of Appeals is reported at 511 
F.2d 902 and is set out in the Appendix hereto, pp. 8a- 
12a. The opinion of the District Court which is not yet 
officially reported, is reprinted at 7 EPD H9376 (D.Okl. 
1974) and is set out in the Appendix hereto, pp. la-7a.

Jurisdiction

The judgment of the Court of Appeals was entered on 
February 21, 1975. On May 2, 1975, Justice White issued



2

an order extending the time in which the Petition for Writ 
of Certiorari must be filed until June 21, 1975. Jurisdic­
tion of this Court is invoked under 28 U.S.C. § 1254(1).

Question Presented

Is a federal employee who sues under section 717 of the 
1964 Civil Rights Act claiming racial discrimination in 
employment entitled to the same trial de novo required for 
private employees by McDonnell-Douglas Corp v. Green, 
411 U.S. 792 (1973) ?*

Statutory Provisions Involved

Section 717(c) of Title V II of the 1964 Civil Rights Act, 
as amended, 42 U.S.C. § 2000e-16(c), provides:

AVithin thirty days of receipt of notice of final ac­
tion taken by a department, agency, or unit referred 
to in subsection 717(a), or by the Civil Service Com­
mission 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 de­
partment, 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 department, agency, or unit, 
an employee or applicant for employment, if aggrieved 
by the final disposition of his complaint, or by the

# A  similar question is presented by the Petition for W rit of 
Certiorari in Chandler v. United States, No. 74- .



3

failure to take final action on Ms complaint, may file 
a civil action as provided in section 706, in which civil 
action the head of the department, agency, or unit, as 
appropriate, shall be the defendant.

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

The provisions of section 706(f) through (k), as 
applicable, shall govern civil actions brought here­
under.

Statement of the Case

Petitioner Anthony M. Salone, Jr., is a black civilian 
employee in the Materials Processing Division at Tinker 
Air Force Base, Oklahoma. In February, 1967, petitioner 
filed an administrative complaint alleging that he had been 
denied promotion because of his race. On April 9, 1967, 
petitioner was promoted from a W -6 warehouseman to a 
GrS-5 Supply Clerk.. On October 17, 1967, the base Equal 
Employment Officer concluded that Salone had been sub­
jected to unfair disciplinary actions because of his race.1 
Certain references to disciplinary actions were expunged 
from Salone’s personnel file, a ten day suspension was can­
celled retroactively, and petitioner was provided back pay 
for that period of suspension.2 Petitioner filed another 
complaint of discrimination on July 31, 1970, as a result 
of which his supervisors agreed that he would be given a 
new supervisory appraisal in September 1970.

On April 11, 1972, petitioner wrote to the base com­
mander complaining that he had been discriminated against

1 Letter of Leroy W . Kirk to Anthony M. Salone, Jr., pp. 3-4.

2 Letter of Theodore D. Wheaton, Chief, Civilian Personnel Di­
vision, to Anthony M. Salone, Jr., undated.



4

by three present and former supervisors because of his 
race and in retaliation for having filed the 1967 complaint 
of racial discrimination. Petitioner complained in par­
ticular that, because of this discrimination, he had been 
consistently given lower performance appraisals than less 
qualified white workers, and submitted in support of his 
complaint a letter signed by twelve co-workers, both black 
and white, alleging discrimination against him. The 
E.E.O. counsellor conducted an investigation into this com­
plaint, and reported on June 13, 1972, that management 
had been unable to produce any records, tangible informa­
tion or other evidence to support the higher appraisal 
given to Salone’s white co-worker and noted that that co­
worker had been given a particularly easy assignment.3 
The counsellor recommended that Salone be given a new 
performance appraisal. Petitioner’s supervisors, however, 
apparently refused to accept this recommendation.

On June 28, 1972, Salone filed a formal complaint of 
discrimination and requested a more extensive investiga­
tion. Two investigators from another Air Force base 
conducted such an inquiry from July 19, 1972 through 
August 29, 1972. The report of the investigation, dated 
August 31, 1972, found a pattern of unfair “favoritism” 
within Salone’s unit, and concluded that that unit was “ a 
fertile place for complaints unless top management is 
made aware of this condition and [if] efforts are not 
initiated to correct this situation, there will be more com­
plaints generating from this organization.” Although the 
report did not directly address many of Salone’s allega­
tions, it concluded that the unit’s method of recording de­
fects in performance was “totally inadequate,” and re­
vealed that during the period considered all personnel

Appeals Examiner’s Report, p. 5.



5

promoted above petitioner’s level were white.4 On October 
5, 1972, a meeting was held with the Chief E.E.O. Coun­
selor to consider this report, but the management repre­
sentative refused to discuss what corrective action might 
be taken.5 On November 10, 1972, the base commander 
issued a decision summarily rejecting the investigator’s 
finding of favoritism and Salone’s charges of discrimina­
tion.6

Thereafter Salone requested that a hearing be held by 
an Appeals Examiner from outside the Department of 
the Air Force. That hearing was held on January 8 and 
9, 1973, and the Examiner issued a 23 page Recommended 
Decision on February 9, 1973. The hearing examiner con­
cluded that, as he had claimed, petitioner had been the 
victim of acts of reprisal for his 1967 and 1970 complaints:

Careful review, study and consideration of the total 
record compiled in this case leads me to conclude that 
Mr. Salone has been the victim of systematic, con­
tinuous discrimination within the Material Processing 
Division. The evidence is overwhelming that, because 
of previous discrimination complaints which he pursued 
in 1967 and 1970, Mr. Salone has been branded as a 
“ trouble maker” and has in numerous respects been 
treated differently from whites and, in many cases 
differently from other blacks who have not filed dis­
crimination complaints.

4 Report of Investigation, pp. 8, 12-13.

5 Appeals Examiner’s Report, p. 16.

6 Letter of General W .Y . Smith to Anthony J. Salone, Jr. 
General Smith rejected the allegation of reprisal and discrimi­
nation solely because he concluded that Salone had not been dis­
criminated against in 1967. General Smith rejected the finding 
of favoritism on the ground that the positions given the favored 
employees were not supposed to be different from or preferable 
to the other positions in the unit. Whether they were in fact 
different or preferable he did not purport to decide.



6

The Appeals Examiner also stated

Aside from the fact that Mrs. Jean Massie, Mr. Calvin 
Rees, Mr. Bill Tomlinson and others have partial re­
sponsibility for the treatment of Mr. Salone, I con­
clude that Mrs. Massie has demonstrated prejudice 
against Negroes generally . . . [T]here is every like­
lihood that Mrs. Massie has consciously denied Mr. 
Salone the opportunity to perform duties . . . the 
performance of which he feels would enhance . . . 
his promotional chances.7 8

The Examiner also concluded that “ those of management 
charged with the responsibility of attempting to resolve 
Mr. Salone’s complaint informally have not acted in good 
faith.” 9 He recommended that disciplinary action be taken 
against Massie, Rees and Tomlinson, and that “immediate 
and continuing steps” be taken to end the acts of reprisal.10 
The Examiner reasoned that Salone’s last performance ap­
praisal was so high that it was not tainted by discrimina­
tion, and did not discuss what compensatory action should 
be taken to redress the past acts of reprisal.

Under the Civil Service Commission regulations, how­
ever, these findings of discrimination were not binding on 
the defendant agency, but were referred to the Secretary 
of the Air Force for final disposition. On March 9, 1973

7 Appeals Examiner’s Report, pp. 19-20.

8 Id., p. 21.

9 Id., p. 20.

10 Id., p. 23.

. . .  In my opinion this treatment of Mr. Salone came
abont because he has exercised in the past his legal
rights to present complaints of discrimination.7



7

the Department’s Director of Equal Opportunity, acting 
for the Secretary, rejected the findings of discrimination 
and the recommendations for disciplinary action and an 
end to acts of reprisal. Although the applicable regula­
tions require an agency to give an explanation of its rea­
sons for overturning an Examiner’s report favorable to 
the complaint,11 the Director stated simply that the evidence 
in the record “does not support your allegations of dis­
crimination based on race.” 12 On July 30, 1973, the 
Agency’s decision was affirmed by the Board of Appeals 
and Review of the United States Civil Service Commission.

On August 31, 1973, petitioner commenced this action in 
the United States District Court for the Western District 
of Oklahoma to reinstate the hearing examiner’s finding of 
discrimination and for back pay and exemplary damages. 
The sworn statements in the administrative record pre­
sented genuine disputes of material fact regarding whether 
Salone had been discriminated against on the basis of race, 
whether he had been subject to reprisals for filing com­
plaints of discrimination in the past, whether there was a 
general pattern of racial discrimination in Salone’s office, 
and whether as a result Salone had suffered unfair super­
visory appraisals and been denied equal opportunity to 
gain new work experience compared to whites. Notwith­
standing this conflict in the record, the government moved 
for summary judgment.13 On April 30, 1974, the District

11 5 C.F.R. § 713.221(b) (2).

12 Letter of James P. Goode to Anthony M. Salone, p. 1.

18_The sole ground urged by the government for dismissing the 
section 717 Count was petitioner’s alleged failure to name as a 
defendant the .Secretary of the Air Force, which it claimed was 
an indispensable party. Motion for Summary Judgment dated 
April 2, 1974, p. 4. In fact the Complaint did name the Secre­
tary as a defendant. On March 5, 1974, the government filed a 
motion to dismiss on the ground that the Secretary was not a 
proper defendant. Motion to Dismiss, p. 1.



8

Court granted what it described as “Defendants’ Motion 
for Summary Judgment affirming the decision of the Board 
of Appeals and Review, United States Civil Service Com­
mission [and] affirming the decision of the Secretary of the 
Air Force.” P. 7a. The district court reasoned that it 
was not authorized “ to make an independent determina­
tion of the facts” , but was required to affirm the Secretary’s 
decision unless it was against the “ clear weight of the 
evidence.” P. 5a. The District Court thus concluded that 
it. could not afford plaintiff the trial de novo which he 
sought. On February 21, 1975, the Court of Appeals for 
the Tenth Circuit affirmed.

REASONS FOR GRANTING THE WRIT

I.
The Decision of the Tenth Circuit Is in Conflict 

With Two Courts of Appeals and Numerous District 
Courts.

In the courts below petitioner argued that he was en­
titled to the same trial de novo14 * accorded to private em­
ployees under McDonald-Douglas Corp. v. Green, 411 U.S. 
792 (1973). He maintains that, in an action under section 
717, the district courts are obligated to make an indepen­
dent determination as to whether there was racial discrimi­
nation and that, in support of his contentions, he was en­
titled to develop by discovery and introduce all relevant 
evidence not limited to the administrative record. Both 
lower courts rejected this contention.

- . ; M The plenary judicial consideration which'petitioner seeks of 
his claims is not technically a trial de novo, since the prior agency 
proceedings involve few of the'indicia of a trial. See p. 27, infra.
The phrase “trial )de novo” As Used herein’ because solely because 
those words have become the conventional manner of referring’ to 
a McDonnell-Douglas plenary hearing! ■ • - .



9

The Court of Appeals held that section 717 did not 
authorize a McDonnell-Douglas trial de novo, and that in 
such an action alleging federal employment discrimination 
Title VII only authorized the District Court to make a 
“ review of the administrative record.” P. 10a. The Tenth 
Circuit reasoned that section 717 only provided for 
“access” to the courts, and did not authorize the courts to 
decide discrimination claims on the merits. P. — a. If the 
administrative record was critically deficient, it reasoned, 
the district court was not to seek additional evidence it­
self, but must remand the case to the agency whose subse­
quent decision would then be subject to limited judicial re­
view. P. 12a. The Court of Appeals held that the District 
Court’s two sentence analysis of the 500 page administra­
tive record gave “ sufficient indication of the facts relied 
on by him from the administrative record to support his 
conclusions as to the administrative decision.” 16 The posi­
tion taken by the Tenth Circuit is essentially that hereto­
fore advanced by the government in this and other cases.

The decision of the Tenth Circuit is squarely in conflict 
with the decision of the Third Circuit in Sperling v. United 
States, 9 EPD 10,100 (3d Cir. 1975). Sperling expressly 
upheld the contention rejected in this case, and required a 
de novo trial in every action under section 717. The Third 
Circuit held that the district courts must make an inde­
pendent determination as to whether there has been un­
lawful discrimination after considering whatever evidence, 
not limited to the administrative record, the plaintiff wants 
to introduce. 9 EPD pp. 7489-7492. The Third Circuit re­
jected the remand procedure authorized by the Tenth Cir­
cuit, disapproved the district court decision in Salone, ex­

16 In fact, of those two sentences, one was completely erroneous 
and the other referred to evidence irrelevant to the primary com­
plaint of discriminatory reprisal. See p. 20, n. 48, infra.



10

pressly declined to follow the precedents relied on by the 
Tenth Circuit,16 and relied on precedents which the Tenth 
Circuit had declined to follow .17

The decisions of both the Third and Tenth Circuits are 
in conflict with the decision of the Ninth Circuit in Chandler 
v. Johnson, 9 EPD 10,123 (9th Cir. 1975). Chandler, un­
like Salone, apparently requires the district court to make 
an independent determination as to whether there was 
racial discrimination, but, unlike Sperling, limits the evi­
dence to the administrative record except under certain cir­
cumstances.18 See Bowers v. Campbell, 8 EPD If 9752, p. 
6138 (9th Cir. 1974).19 The Ninth Circuit expressly re­
jected “both polar positions” that de novo trials are re­
quired in every case, as in Sperling, and are never ap­
propriate, as in Salone. 9 EPD p. 7562.

The conflict on this issue among the district courts, 
though more complex than that among the courts of ap­
peals, parallels the conflict among Salone, Sperling and 
Chandler.

16 The Tenth Circuit relied on, and the Third Circuit declined 
to follow, Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C. 1973), 
Handy v. Gayler, 364 F.Supp. 676 (D. Md. 1973), and the deci­
sion in Thompson v. Department of Justice at 382 F.Supp. 762 
(N.D. Cal. 1974).

17 The Third Circuit relied on, and the Tenth Circuit declined 
to follow, Henderson v. Defense Contract Administration, 370 
F.Supp. 180 (S.D.N.Y. 1973) and the decision in Thompson v. 
Department of Justice at 360 F.Supp. 255 (N.D. Cal. 1973).

18 “A  plaintiff might show that the administrative record is 
inadequate, or that the hearing officer cut short the proceedings 
in a manner that prevented a fair presentation of the plaintiff’s 
ease; or that, without judicial discovery, a case could not be 
made.” 9 EPD, p. 7562.

19 “ [T]he district court must bear the ultimate responsibility 
for determining the facts underlying the dispute.”



11

(1) Thirteen district courts have adopted the rule of 
Sperling and required a McDonnell-Douglas de novo trial 
in all cases under section 717.20 Two other courts have 
denied such a trial in name but given such a trial in 
substance.21

(2) Twenty district court decisions have adopted rules 
similar to that urged by the government and adopted by the 
Tenth Circuit in the instant case. Six of these decisions 
require that the administrative decision be upheld if sup­
ported by “ substantial evidence.” 22 Six courts require 
judgment for the defendants if the administrative decision 
is supported by substantial evidence and is not arbitrary 
or capricious.23 * * * * 28 Three decisions limit the court to determin­

20 Boston v. Naval Station, 10 PEP Cas. 649 (E.D. Ya. 1974) ; 
Foster v. United States Civil Service Commission, 9 EPD ff 9887 
(S.D. Tex. 1974); Griffin v. United States Postal Service, 7 EPD  
II 9133 (M.D. Fla. 1973); Harris v. Ulanich, No. 73-369-N, E.D. 
Va., opinion dated November 14, 1974; Henderson v. Defense 
Contract Administration, 370 P.Snpp. 180 (S.D.N.Y. 1973) ; Hill 
v. Seamens, 9 EPD ff 10,095 (S.D. Tex. 1975); Hunt v. Schles- 
inger, 9 EPD If 10,024 (W .D. Tenn. 1974) ; Jackson v. United 
States Civil Service Commission, 379 F.Supp. 589 (S.D. Tex.
1973) ; Levens v. General Services Administration, 10 PEP Cas. 
493 (W .D. Mo. 1975) ; Reynolds v. Wise, 8 EPD ff 9777 (N.D. 
Tex. 1973) ; Robinson v. Klassen, 9 EPD If 9954 (E.D. Ark. 1974) ; 
Sylvester v. United States Postal Service, No. 73-H-220, S.D. Tex., 
opinion dated April 23, 1975; Chisholm v. United States Postal 
Service, No. C-C-73-148, W .D . N.C., opinion dated May 29, 1975.

21 Johnson v. United States Postal Service, 8 EPD If 9548 (N.D. 
Pla. 1974) ; 364 F.Supp. 37 (N.D. Pla. 1973); Robinson v. Warner, 
8 EPD If 9542 (D.D.C. 1974).

22 Cates v. Johnson, 377 F.Supp. 1145 (W .D. Pa. 1974) ; Evans
v. Johnson, 7 EPD ft 9351 (C.D. Cal. 1974); Fisher v. Brennan,
10 FEP Cas. 685 (E.D. Tenn. 1974); Leinster v. Engman, 8
EPD If 9774 (D.C.C. 1974) ; Roberts v. Mumford, 8 EPD If 9692
(D.D.C. 1974) ; Smith v. Snyder, 381 F.Supp. 1083 (E.D Pa.
1974) .

28 Allen y . Veterans Administration, 8 EPD If 9783 (W .D. Pa. 
1974); Coopersmith v. Johnson, 7 EPD If 9388 (D.D.C. 1974); 
Ettinger v. Johnson, 10 FEP Cas. 642 (E.D. Pa. 1974); Handy



12

ing whether the administrative decision has a “ rational 
basis”,24 three courts limit the court’s role to “ .judicial re­
view” ,25 and three other decisions formulate still different 
standards which seem within the Salone family.26

(3) Twelve decisions, like Chandler, require the district 
court to make an independent determination as to whether 
there was discrimination, but limit plaintiff’s right to in­
troduce evidence other than the administrative record. 
Seven decisions have adopted the standard first fashioned 
in Hartley v. Johnson, 360 F.Supp. 1247 (D.D.C. 1973), 
which requires judgment for the government if the ad­
ministrative record “affirmatively establish[es] by the clear 
weight of the evidence’ ’ the absence of discrimination, and 
if not provides that the court may either grant a de novo 
trial, remand to the agency, or grant plaintiff relief on the 
administrative record.27 Three decisions require the court * 24 25 26 27

v. Gayler, 364 F.Supp. 676 (D. Md. 1973) ; Nimitz v. Berzak, 7 
EPD 9273 (E.D. La. 1974); Bussell v. Johnson, 10 FEP Cas. 
924,926 (W .D. Pa. 1975).

24 Gautier v. Weinberger, 6 EPD j[ 9001 (D.D.C. 1973) ; Boney 
v. Saxbe, 8 EPD 9587 (D.D.C. 1974) ■ Smith v. Gunther, 9 EPD  
H 9915 (D.D.C. 1975).

25 Spencer v. Schlesinger, 374 F.Supp. 840 (D.D.C. 1974); 
FicMin v. Sabatini, 8 EPD 1} 9829 (E.D. 1974) ; Thompson v. 
Department of Justice, 372 F.Supp. 762 (N.D. Cal. 1974).

26 Marshall v. United States Federal Highway Administrator, 
7 EPD j[ 9184 (D.D.C. 1973) (administrative decision upheld if 
supported by “substantial grounds” ) ; Tomlin v. Air Force Medi­
cal Center, 369 F.Supp. 353 (S.D. Ohio 1974) (administrative 
decision upheld unless it was “unfair or arbitrary action” ) Mc­
Gowan v. United States Information Agency, 8 EPD 9787 
(D.D.C. 1974) (substantial evidence standard, if not met than 
de novo trial, remand, or judgment for plaintiff).

27 Bernardi v. Butz, 7 EPD If 9381 (N.D. Cal. 1974); Guilday 
v. United States Department of Justice, 8 EPD ff 9817 (D Dei 
1974) ; Caro v. Schultz, 9 EPD'ff 9987 (N.D. 111. 1975); Eastland 
v. Tennessee Valley Authority, 9 EPD ff 9927 (N.D. Ala. 1975) ; 
McLaughlin v. Callaway, 9 EPD jf 9888 (S.D. Ala. 1974); Wil­
liams v. Mumford, 6 EPD ff 8785 (D.D.C. 1973)



13

to make “an independent judgment” as to whether there 
was discrimination, hut limit the evidence to the administra­
tive record except where other evidence was previously 
unknown, unavailable or excluded at the administrative 
hearing.28 Two courts limit their role to “ review of the 
record” but allow plaintiffs to supplement the record “ for 
cause shown.” 29

(4) Five decisions have denied trial de novo without 
articulating the applicable standard,30 and three other 
courts have adopted sui generis rules.31

This conflict is not inadvertent. In addition to the Third 
and Tenth Circuits, twenty district courts have noted the 
widespread disagreement as to whether section 717 re­
quires a McDonnell-Douglas de novo trial, expressly or 
tacitly disapproving the line of cases not followed.32 The

28 Abrams v. Johnson, 7 EPD ft 9380 (N.D. Ohio 1974); Car- 
reathers v. Alexander, 9 EPD j[ 9858 (D. Colo. 1974); Hockett v. 
Administrator of Veterans Affairs, 8 EPD ^ 9645 (N.D Ohio 
1974).

29 Baca v. Butz, 376 F. Supp. 1005 (D.N. Mex. 1974); Brooks 
v. Lynn, 10 FEP Cas. 638 (W .D . Old. 1974).

30 Pendleton v. Schlesinger, 8 EPD tf 9598 (D.D.C. 1974); 
Pointer v. Sampson, 62 F.E.D. 689 (D.D.C. 1974) ; Bicherson v. 
Fargo, 64 F.E.D. 393 (E.D. Pa. 1974) ; Richardson v. Hampton, 
373 F.Supp. 833 (D.D.C. 1974); Archuleta v. Callaway, No. 74- 
M-213, D.Colo., opinion dated November 20, 1974.

n Hair e v. Callaway, 9 FEP Cas. 168 (E.D. Mo. 1974) (ad­
ministrative decision upheld if supported by “preponderance of 
the evidence” ) ; Thomas v. Department of State, 8 EPD tf 9622 
(D.D.C. 1974) (Hackley standard without provision for de novo 
trial if standard not m et); Wormley v. Department of the Navy,
8 EPD Cas. 1008 (N.D. Cal. 1974) (administrative decision must 
meet both Hackley and substantial evidence standard.)

32 Salone v. United States, p. 10a; Sperling v. United States,
9 EPD 10,100, pp. 7489-90 (3d Cir. 1975) ; Allen v. Veterans 
Administration, 8 EPD 9783, p. 6276 (W .D. Pa. 1974) ; Baca 
v. Butz, 376 F.Supp. 1005, 1007, n.3 (D.N. Mex. 1974) ; Boston 
v. Naval Air Station, 10 FEP Cas. 649, 652, n.2 (E.D. Va. 1974) :



14

disagreement as to tlie proper standard among courts re­
jecting de novo trials is equally open and notorious. In 
adopting the substantial evidence rule, the courts in Smith 
v. Gunther, 9 EPD 9914, p. 6803, n. 1 (D.D.C. 1975) and 
Leinster v. Engman, 8 EPD 9774 (D.D.C. 1974) expressly 
rejected the “ different standard of review” established in 
Hackley. Smith v. Snyder, 381 F. Supp. 1083 (E.D. Pa. 
1974) rejected the more liberal standard of Carreathers v. 
Alexander, 9 EPD U 9858 (D. Colo. 1974). The government, 
which supports the substantial evidence rule, has opposed 
adoption of the Ilackley rule as an “ insult” to the Civil 
Service Commission. Guilday v. United States Department 
of Justice, 8 EPD 9817, p. 6434 (D. Del. 1974). The court 
in Guilday v. United States Department of Justice, 8 EPD 
H 9817, p. 6433 (D. Del. 1974) disapproved the substantial 
evidence standard adopted by three other cases and applied 
instead the Hackley rule. The court which fashioned the 
liberal rule announced in Abrams v. Johnson, 7 EPD 9380, 
p. 7715 (N.D. Ohio 1974) expressly declined to follow

Caro v. Schultz, 9 EPD ([ 9987, p. 7114 (N.D. 111. 1975) ; Car­
reathers v. Alexander, 9 EPD jf 9858, p. 6565 (D. Colo. 1974); 
Eastland v. Tennessee Valley Authority, 9 EPD ft 9927, p. 6883 
(N.D. Ala. 1975) ; Ficklin v. Sabatini, 8 EPD IT 9829, p. 6458, n.3 
(E.D. Pa. 1974); Guilday v. United States Department of Justice, 
8 EPD |f 9817, p. 6433 (D. Del. 1974) ; Ha,ire v. Callaway, 9 FEP  
Cas. 168, 169 (E.D. Mo. 1974) ; Harris v. Ulanich, Civil No. 73- 
369-N, E.D. Ya., opinion dated No. 14, 1974, pp. 3, 8 ; Pendleton 
v. Schlesinger, 8 EPD (f 9298, p. 5569 (D.D.C. 1974); Robinson 
v. Klassen, 9 EPD 9954, p. 7002 (E.D. Ark. 1974) ; Smith v. 
Snyder, 381 F.Supp. 1083, 1085 (E.D. Pa. 1974); Spencer v. 
Schlesinger, 374 F.Supp. 840, 843 (D.D.C. 1974) ; Thomas v. 
Department of State, 8 EPD (f 9622, p. 5661 (D.D.C. 1974) ; Rus­
sell v. Johnson, 10 FEP Cas. 924, 925, nn. 3-4 (M.D. Pa. 1975); 
Archideta v. Callaway, No. 74-M-213, D. Colo., decision dated 
November 20, 1974, slip opinion, pp. 5-7; Sylvester v. United States 
Postal Service, No. 73-H-220, S.D, Tex., opinion dated April 23, 
1975, slip opinion, pp. 3-4; Chisholm v. United States Postal Ser­
vice, No. C-C-73-148, W.D.N.C., opinion dated May 29, 1975, slip 
opinion p. 10.



15

Hackley.33 34 35 The confusion and conflicts are so widespread 
that in four instances district courts have entertained mo­
tions for reconsideration and reversed their own decisions 
as to the proper standard.84 In four other cases lower 
courts, rather than guess the correct standard, have issued 
decision with alternative holdings under different stan­
dards.36

This widespread conflict as to the correct standard arises 
from an equally broad disagreement as to the underlying 
legal principles. The Third Circuit and five district courts 
conclude that section 717 was intended to give federal 
employees the same judicial remedy as wras already ac­

83 “In some respects the procedure which this court has deter­
mined should follow in the trial of this civil action varies from 
the procedure just described by Judge Gesell. The difference 
arises really at two points. It is concluded that the supplementa­
tion question should be resolved before the court proceeds to 
render its independent judgment of the evidentiary record. Also, 
applying McDonnell-Douglas Corp., supra, it is concluded that the 
initial burden of proof rests upon the plaintiff in this Title Y II  
civil action, and not on the agency, as Judge Gesell determines.”

34 Boston v. Naval Station, 10 FBP Gas. 649 (E.D. Ya. 1974) 
(first decision held no de novo trials; second decision held de novo 
trials required); Carreathers v .Alexander, 7 EPD If 9379, 9 EPD  
H 9858 (D. Colo. 1974) (first decision held de novo trials required; 
second decision adopted Abrams standard) ; Spencer v. Richard­
son, 6 EPD If 8906 (D.D.C. 1973), vacated sub nom. Spencer V. 
Schlesinger, 374 P.Supp. 840 (D.D.C. 1974) (first decision held 
de novo trials required; second decision held court was only to 
review the administrative record) ; Thompson v. Department of 
Justice, 360 F.Supp. 255 (N.D. Cal. 1973) ; 372 F.Supp. 762 
(N.D. Cal. 1974) (first decision held de novo trials required; 
second decision seems to adopt Hackley standard.)

35 ] jarris v. Ulanich, No. 73-369-N, E.D. Va., opinion dated No­
vember 14, 1974 (De nova and Hackley standard) ; Wormley v. 
Department of the Navy, 8 FEP Cas. 1008 (N.D. Cal. 1974)
(Hackley and “substantial evidence” rule) ; McGowan v. United 
States Information Agency, 8 EPD If 9787 (D.D.C. 1974) (“sub­
stantial evidence” rule and “a stricter standard” ) ; Chisholm v. 
United States Postal Service, No. C-C-73-148, W .D.N.C., opinion 
dated May 29, 1975 (De novo and Hackley standard).



16

corded to private employees;36 the Ninth and Tenth Cir­
cuits and seven district courts, however, insist that Con­
gress wanted to limit federal employees to a judicial 
remedy different from and inferior to that provided for 
private employees.37 The Tenth Circuit and eleven district 
courts argue that section 717 was not intended to alter the 
severe restrictions which existed prior to 1972 on the scope 
of judicial scrutiny of administrative decisions, and apply 
the pre-717 standard announced in decisions such as Pol- 
cover v. Secretary of the Treasury, 477 F.2d 1223 (D.C. 
Cir. 1973,38 but the Third Circuit and three district courts 
insist that section 717 was adopted precisely for the pur­

36 Sperling v. United States, 9 EPD jf 10,100, p. 7492 (3d Cir. 
1975); Griffin v. United States Postal Service, 7 EPD ff 9133, 
p. 6752 (M.D. Fla. 1973); Jackson v. United States Civil Service 
Commission, 379 F.Supp. 589 (S.D. Tex. 1973) ; Robinson V. 
Klassen, 9 EPD If 9954, p. 7002 (E.D. Ark. 1974); Sylvester v. 
United States Postal Service, No. 73-H-220, S.D. Tex., opinion 
dated April 23, 1975;, Chisholm v. United States Postal Service, 
No. C-C-73-148, W.D.N.C., opinion dated May 29, 1975.

37 Salone v. United States, p. 12a; Chandler v. Johnson, 9 EPD 
If 10,123, p. 7562 (9th Cir. 1975) ; Baca v. Butz, 376 F.Supp. 1005, 
1009 (D.N. Mex. 1974) ; Ficklin v. Sabatini, 8 EPD If 9829, p. 6459 
(E.D. Pa. 1974) ;  Uaire v. Callaway, 9 FEP Cas. 168, 169 (E.D. 
Mo. 1974); Handy v. Gayler, 364 F.Supp. 676, 678 (D. Md. 1973); 
Pendleton v. Schlesinger, 8 EPD 9598, p. 5570 (D.D.C. 1974) ; 
Pointer v. Sampson, 62 F.E.D. 689, 694 (D.D.C. 1974) ; Spencer 
v. Schlesinger, 374 F.Supp. 840, 844 (D.D.C. 1974).

38 Salone v. United Stales, p. 10a ; Allen v. Veterans Admin­
istration, 8 EPD If 9783, p. 6276 (W .D. Pa. 1974) ; Coopersmith 
v. Johnson, 7 EPD 1f 9388 (D.D.C. 1974)• Gautier v. Weinberger, 
6 EPD |f 9001, p. 6254 (D.D.C. 1973) ; Handy v. Gayler, 364 
F.Supp. 676, 679 (D. Md. 1973); Leinster v. Engman, 8 EPD  
11 9774, p. 6242 (D.D.C. 1974) ; Marshall v. United States Federal 
Highway Administrator, 7 EPD If 9184, p. 6941 (D.D.C. 1973) ; 
McGowan v. United States Information Agency, 8 EPD If 9787, 
p. 6304 (D.D.C. 1974) ; Roberts v. Mumford, 8 EPD ff 9692, p. 
5896 (D.D.C. 1974); Roney v. Saxbe, 8 EPD ff 9587, p. 5550 
(D.D.C. 1974) ; Smith v. Snyder, 381 F.Supp. 1083, 1087 (E.D. 
Pa. 1974) ; Russell v. Johnson, 10 FEP Cas 924 (W .D. Pa. 1975).



17

pose of overcoming these restrictions.39 40 The Third Circuit 
and two district courts maintain that the legislative history 
of section 717 compels a trial de novo,i0 four district courts 
decisions assert that it precludes a de novo trial,41 and the 
Ninth and Tenth Circuits together with four other district 
courts find the legislative history inconclusive.42 A  similar 
conflict exists among the lower courts as to whether a trial 
de novo is required in section 717 cases by this Court’s 
decisions in Alexander v. Gardner-Denver Co., 415 U.S. 
36 (1974) and McDonnell-Douglas Corp. v. Green, 411 U.S. 
792 (1973).43

89 Sperling v. United States, 9 EPD ft 10,100, p. 7490 (3d Cir. 
1975); Abrams v. Johnson, 7 EPD ft 9380, p. 7713 (N.D. Ohio 
1974); Griffin v. United States Postal Service, 7 EPD ft 9133, 
p. 6752 (M.D. Pla. 1973); Guilday v. United States Department 
of Justice, 8 EPD ft 9817, p. 6433 (D. Del. 1974).

40 Sperling v. United States, 9 EPD ft 10,100, p. 7490-91 (3d 
Cir. 1975) ;  Henderson v. Defense Contract Administration, 370 
F.Supp. 180, 184 (S.D.N.Y. 1973); Reynolds v. Wise, 8 EPD  
ft 9777, p. 6251 (N.D. Tex. 1973).

41 Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C. 1973) ; Handy 
v. Gayler, 364 F.Supp. 676, 678 (D. Md. 1973) ; McLaughlin v. 
Callaway, 382 F.Supp. 885, 890 (S.D. Ala. 1974) ;  Spencer v. 
Schlesinger, 374 F.Supp. 840, 844 (D.D.C. 1974).

42 Salone v. United States, p. 11a; Chandler v. Johnson, 9 EPD  
ft 10,123, p. 7562 (9th Cir. 1975); Guilday v. United States De­
partment of Justice, 8 EPD ft 9817, p. 6432 (D. Del. 1974) ; Harris 
v. Ulanich, No. 73-369-N, E.D. Va., slip opinion, Nov. 14, 1974, 
p. 8 ; Sylvester v. United States Postal Service, No. 73-H-220, 
S.D. Tex., opinion dated April 23, 1975; Chisholm v. United States 
Postal Service, No. C-C-73-148, W.D.N.C., opinion dated May 29, 
1975.

43 Compare Sperling v. United States, 9 EPD ft 10,100, p. 7489, 
n.40 (3d Cir. 1975) (relying on Alexander and McDonnell-Doug­
las) ; Boston v. Naval Station, 10 FEP Cas. 649, 654 (E.D. Ya. 
1974) (relying on Alexander) ; Harris v. Ulanich, No. 73-369-N, 
E.D. Ya., slip opinion November 14, p. 10 (relying on Alexander) ; 
Hunt v. Schlesinger, 9 EPD ft 10,024, p. 7242 (W .D. Tenn. 1974) 
(relying on McDonnell-Douglas) ; with Chandler v. Johnson, 9 
EPD ft 10,123, p. 7562 (9th Cir. 1975) (distinguishing Alexander 
and McDonnell-Douglas); Salone v. United States, p. 10a (dis­



18

II.
The Question Presented Is of Substantial Importance.

At issue in this case is an effort by the executive branch 
to obtain judicial nullification of a statute passed by Con­
gress over the objections of the Civil Service Commission. 
The Department of Justice, urging that McDonnell-Douglas 
de novo trials are impermissible, moves “as a matter of 
course” in virtually every section 717 action for summary 
judgment on the administrative record. Guilday v. United 
States Department of Justice, 8 EPD 9817, p. 6432 (D. Del. 
1974). In the last two years44 * there have been more than 50 
district court decisions on this question, which has also 
been decided in three courts of appeals and is pending in 
three others.46 Even the courts which have denied trials 
de novo have observed that “ the ultimate determination of 
the issue will have a far reaching effect on litigation in­
volving alleged Title VII discrimination in federal em­
ployment.” HacJcley v. Johnson, 360 F. Supp. 1247, 1249 
(D.D.C. 1973); Handy v. Gayler, 364 F. Supp. 676 (D. Md. 
1973).

The practical import of this issue is simple—in the ab­
sence of a trial de novo a federal employee, no matter how

tinguishing McDonnell-Douglas) ; Abrams v. Johnson, 7 EPD  
If 9380, p. 7712 (N.D. Ohio 1974). Compare Carreathers v. Alexan­
der at 7 EPD 9379, p. 7709 (relying on Alexander and McDon­
nell-Douglas as requiring a trial de novo) with 9 EPD <j[ 8958, 
reversing its earlier decision and rejecting de novo) (D. Colo. 
1974).

44 Since the first de novo decision on June 6, 1973, Thompson 
v. United States Department of Justice, 360 E.Supp. 255, vacated
372 F.Supp. 762 (N.D. Cal. 1974).

46 Hackley v. Johnson, D.C. Cir. No. 73-2072; Laurel v. United 
States, 5th Cir. No. 74-3746; Swain v. Callaway, 5th Cir., No. 
75-2002; Eastland v. Tennessee Valley Authority, 5th Cir., No. 
75-1855; Caro V. Schultz, 7th Cir. No. 74-1728.



19

egregiously Ms or her rights have been violated, is virtually 
certain to lose. Since 1973 there have been 28 district court 
decisions on the merits by courts affording less than a 
de novo trial. These decisions involved a wide variety of 
complaints, discrimination on the basis of race, sex, na­
tional origin and religion, a multitude of defendant 
agencies, and administrative records of varying length 
and complexity. In each and every case the district court 
refused to overturn the administrative decision and granted 
summary judgment in favor of the defendants,46 In many 
of these cases the district court’s decision is utterly devoid 
of any discussion of the facts of the case or of what evi­
dence allegedly supports the administrative decision.47

46 Salone v. United States, 7 BPD if 9376 (W .D. Okla. 1974); 
Sperling v. United States, 7 BPD If 9274 (D.N.J. 1974) ; Chandler 
v. Johnson, 7 BPD if 9139 (C.D. Cal. 1973); Nimitz v. Berzak, 
7 BPD 9273 (B.D. La. 1974) ; Hackley v. Johnson, 360 F.Supp. 
1247 (D.D.C. 1973) ; Gautier v. Weinberger, 6 BPD if 9001 (D.D.C. 
1973); Tomlin v. Air Force Medical Center, 369 F.Supp. 353 
(S.D. Ohio 1974); Thompson v. Department of Justice, 372 
F.Supp. 762 (N.D. Cal. 1974); Bernardi v. Buts, 7 BPD if 9381 
(N.D. Cal. 1974) ; Johnson v. U.S. Postal Service, 364 F.Supp. 
37 (N.D. Fla. 1973); Coopersmith v. Johnson, 7 BPD if 9388 
(D.D.C. 1974); Roney v. Saxbe, 8 BPD if 9587 (D.D.C. 1974); 
Thomas v. Department of State, 8 EPD if 9622 (D.D.C. 1974) ; 
Roberts v. Mumford, 8 EPD if 9692 (D.D.C. 1974) ; Cates V. 
Johnson, 377 F.Supp. 1145 (W .D. Pa. 1974); Wormley v. Depart­
ment of the Navy, 8 FBP Cas. 1008 (N.D. Cal. 1974); Leinster 
v. Engman, 8 EPD if 9774 (D.D.C. 1974) ; McGowan v. United 
States Information Agency, 8 EPD if 9787 (D.D.C. 1974) ; Allen 
v. Veterans Administration, 8 EPD if 9783 (W .D . Pa. 1974) ; 
Caro v. Schultz, 9 EPD if 9987 (N.D. 111. 1975) ; Smith v. Gunther, 
9 BPD if 9915 (D.D.C. 1975); Marshall v. United States Federal 
Highway Administrator, 7 BPD if 9184 (D.D.C. 1973) ; Smith 
v. Snyder, 381 F.Supp. 1083 (E.D. Pa. 1974) ; Ettinger v. John­
son, 10 FBP Cas. 642 (E.D. Pa. 1974) ; Fisher v. Brennan, 10 
FBP Cas. 685 (E.D. Tenn. 1974); Haire v. Callaway, 9 FBP  
Cas. 168 (E.D. No. 1974) ■ Russell v. Johnson, 10 FBP Cas. 924 
(W .D. Pa. 1975); Richerson v. Fargo, 10 FBP Cas. 862 (E.D. 
Pa. 1975).

47 See e.g. Nimitz v. Berzak, 7 EPD if 9273 (E.D. La. 1974) ; 
Chandler v. Johnson, 7 EPD if 9139 (C.D. Cal. 1973); Gautier



20

The instant case well illustrates the cursory treatment 
given section 717 cases in the absence of a McDonnell- 
Douglas trial cle novo. The district court’s analysis of the 
500 page administrative record was limited to two sen­
tences.* 48 The court’s summary of the facts of the case was 
taken, almost verbatim, from the government’s motion for 
summary judgment. A comparison of the District Court’s 
decision with the administrative record raises serious 
question as to whether the court had actually read the 
record.49 * * * * * * The District Court’s decision is typical of the

v. Weinberger, 6 EPD jj 9001 (D.D.C. 1973) ; Thompson v. United 
States Department of Justice, 372 F.Supp. 762 (N.D. Cal. 1974); 
Roney v. Saxle, 8 EPD fl 9587 (D.D.C. 1974); Wormley v. De­
partment of the Navy, 8 PEP Cas. 1008 (N.D. Cal. 1974).

48 P. 6a. The first sentence stated that the affidavits of peti­
tioner’s supervisors denying the existence of discrimination “stand 
uncontroverted in the Record.” In fact the record contained 
sworn statements of petitioner’s fellow workers, both black and 
white, describing in detail the discrimination they had observed. 
Twelve affiants swore that Salone had been discriminated against 
because of his race, nine affiants stated that Salone had been dis­
criminated against in retaliation for having filed discrimination 
complaints in the past, and eight swore that Salone had been 
afforded less opportunity to receive job training than had whites. 
Appeals Examiner’s Report, p. 10.

The second statement was that the Complaint Examiner had 
rejected petitioner’s objection to his March 1972 performance ap­
praisal because that appraisal was so high. The District Court 
made no mention of the Examiner’s finding that the defendants 
had engaged in systematic discrimination against plaintiff because 
he had filed a complaint of racial discrimination in 1967.

In the Tenth Circuit the government characterized this two 
sentence analysis as “exhaustive.” Brief of Defendants-Appellees, 
p. 5.

49 Although the decision states that the district court had read
the Record “most carefully,” p. 6a, the court never noticed that the
350 page transcript of the “fair hearing” , the critical portion of
the administrative record by which the agency’s decision must
be measured, had been omitted from the record filed with and
read by the court. The district court further recites that “On
April 2, 1973, the Plaintiff appealed the Director’s decision to



21

peremptory treatment afforded section 717 complaints in 
the absence of a trial de novo; Congress adopted section 
717, not to encourage the performance of such empty ritu­
als, but to mandate judicial inquiry into claims of racial 
discrimination.

The treatment of cases under the de novo standard is 
strikingly different. The courts have there afforded plain­
tiffs, through discovery and hearings in open court, ample 
opportunity to develop the relevant facts. The resulting 
decisions include detailed discussion of the evidence and 
specific findings as to disputed facts. Plaintiffs have won 
somewhat more than half of these cases on the merits.* 60 
This result suggests that, in many of the 28 cases denying 
de novo trials, the courts did not find discrimination, not 
because it had not occurred, but because they refused to 
look for it. Certiorari should be granted to determine 
whether the federal district courts which examine with 
scrupulous care claims of discrimination in private em­
ployment can or must refuse to do so when the alleged 
lawbreaker is the government of the United States.

The availability of de novo trials may also effect whether 
federal employees can maintain class actions. The lower

the Board of Appeals and Review, Civil Service Commission 
which Board, on July 30, 1973, affirmed the decision of the Di­
rector, EEO, without comment.” That sentence, taken from the 
government’s motion for summary judgment, is inaccurate— the 
Board’s decision was accompanied by an eight page opinion.

60 Reynolds v. Wise, 8 EPD Hj( 9777 (N.D. Tex. 1973), 9778 
(N.D. Tex. 1974) (plaintiff won) ; Robinson v. Warner, 8 EPD  
it 9452 (D.D.C. 1974) (court, though denying de novo trials 
generally, gave one in this case; plaintiff w on); McLaughlin v. 
Callaway, 9 EPD Hjj 9888, 10,098 (S.D. Ala. 1974) (court, though 
denying de novo trials generally, gave one in this case; plaintiff 
won) ;. Levens v. General Services Administration, 10 FEP Cas. 
493 (W .D. Mo. 1975) (government won); Harris v. Ulanich, No. 
73-369-N, E.D. Va., opinion dated November 14, 1974 (government 
won).



22

courts denying trials de novo have uniformly held that, if 
federal employees are entitled only to judicial review of 
their administrative proceeding, federal employees can 
never maintain a class action against the federal govern­
ment.51 These courts would bar class actions even where 
the employee sues after the agency fails to act for 180 days, 
and there is thus not even an administrative decision to 
affirm. Although some courts denying class actions against 
the federal government suggest the rule might be other­
wise if there was an administrative record regarding class 
wide discrimination,63 Civil Service Commission procedures 
make it impossible to make such a record.63 Thus the bar * 53

61 Eastland v. Tennessee Valley Authority, 9 EPD ff 9927 (N.D. 
Ala. 1975) ; Ficklin v. Sabatini, 9 EPD If 9829 (E.D. Pa. 1974) ; 
Handy v. Gayler, 364 P. Supp. 676, 679 (D. Md. 1973) • Mc­
Laughlin v. Callaway, 9 EPD ff 9888 (S.D. Ala. 1974); Pendleton 
v. Schlesinger, 8 EPD ff 9598 (D.D.C. 1974); Pointer v. Sampson, 
7 EPD jf 9326, p. 7506 (D.D.C. 1974) ; Bicherson v. Fargo, 8 EPD  
ff 9751, p. 6135 (E.D. Pa. 1974) ; Williams v. Mumford, 6 EPD  
f[8785 (D.D.C. 1973); cf. Caro v. Schultz, 9 EPD ff 9987 (N.D. 111. 
1975); Evans v. Johnson, 7 EPD f  9351 (C.D. Cal. 1974); Hackley 
v. Johnson, 360 F. Supp. 1247, 1254, n. 11 (D.D.C. 1973).

53 See, e.g., Bicherson v. Fargo, 9 EPD If 9751, p. 6135 (E.D. 
Pa. 1974).

53 Under the Commission’s regulations all class allegations must 
be treated under a special provision for “third party complaints” . 
5 CFR § 713.251. Such third party complaints are not subject to 
the procedures for individual complaints: there is no hearing, no 
detailed written decision, and no opportunity to cross examine 
witnesses. It appears to be the Commission’s position that if such 
a complainant is denied relief he or she cannot seek judicial 
redress.

The Appeals Review Board has consistently held that an em­
ployee cannot include with his individual complaint allegations of 
class-wide discrimination, but must process such allegations under 
the third party procedure. See, e.g., ARB Decision Nos. 713-74- 
483; 713-74-577. If a hearing examiner finds there is class dis­
crimination, he cannot grant relief. ARB Decisions No. 73-288, 
713-74-192. The Civil Service Commission has instructed those 
examiners, “In some instances, only one person out of a similarly 
situated group of employees files a complaint of discrimination. If



23

to de novo trials may mean that the federal government, 
the nation’s largest employer with over 3 million employees, 
would be immune from the class actions available against 
all other employers which engage in discrimination. Com­
pare Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th 
Cir. 1968).54 For the courts to restrict themselves to deal­
ing with individual cases, rather than systematic discrimi­
nation that may affect thousands of minority workers, 
would be to unilaterally renounce the obligation conferred 
on them by Congress to end such systematic discrimination 
“ root and branch.”

Thus if the construction of section 717 heretofore ad­
vanced by the United States, and adopted by the Tenth 
Circuit, is accepted, the statute will be rendered totally in­
effective as a remedy for discrimination in federal employ­
ment. Certiorari should be granted to resolve the wide­
spread conflict on this vital issue.

the Examiner finds discrimination in such a case, any specific 
corrective action, for example, promotion, may be recommended 
only for the complainant.” United States Civil Service Commis­
sion, Discrimination Complaints Examiners Handbook, 73-74 
(April, 1973).

One district court has held, at the urging of the government, 
that “Administrative proceedings under Title V II are individual- 
in nature and therefore not susceptible to class treatment,” 
Archuleta v. Callaway, No. 74-M-213, D. Colo., decision dated 
November 24, 1974, slip opinion, p. 8.

54 The conflict on the de novo issue has, of course, led to a 
similar conflict as to whether federal employees can ever maintain 
class actions. Compare cases cited, n. 51, supra, with Chisholm v. 
United States Postal Service, No. C-C-73-148, W .D. N.C., opinion 
dated May 29, 1975; Sylvester v. United States Postal Service, No. 
73-H-220, S.D. Tex., opinion dated April 23, 1975.



24

III.

The Decision of the Tenth Circuit Is Clearly Erroneous.

This Court’s decision in McDonnell-Douglas Corp. v. 
Green, 411 U.S. 792 (1973), requires a trial cle novo in a 
Title VII action by an employee working for a private 
employer. The right to a trial de novo in private employ­
ment discrimination cases was already well established 
when Congress adopted amended Title V II to cover federal 
employees in 1972.55 The issue presented by this case is 
whether Congress intended to restrict federal employees 
to a judicial remedy less effective than that afforded private 
employees.

The legislative history of Section 717 clearly demon­
strates that the underlying purpose of that amendment was 
to give federal employees the same right of action already 
enjoyed by private employees under McD onnell-D ouglas 
v. Green, and to end the distinction between the two which 
had existed since 1964. As the House Committee explained, 
■section 717 was drafted because “ federal employees, un­
like those in the private sector to whom Title V II is ap­
plicable, face legal obstacles in obtaining meaningful reme­
dies.” 66 67 Under Section 717, the Senate report stated, “Ag­
grieved employees or applicants will also have the full 
rights available in the courts as one granted to individuals 
in the private sector under Title VII.” 57 Senator Dominick,

66 Robinson v. Lorillard Corp., 444 F.2d 791, 800 (4th Cir. 
1971), cert, dismissed 404 U.S. 1006 (1971); Beverly v. Lone Star 
Lead Construction Corp., 437 F.2d 1136, 1140-42 (5th Cir. 1971) ; 
Flowers v. Local 6, Laborers International Union of North 
America, 431 F.2d 205, 206-08 . (7th Cir. 1970) ; Felcete v. United 
States Steel Corp., 424 F.2d 331, 334-36 (3d Cir. 1970).

66 H. R. Rep. No. 92-238, p. 25.

67 S. Rep. No. 92-415, pp. 16-17 (emphasis added); ■



25

one of the draftsmen of the Senate version of § 717(c), 
argued

A federal employee . . . would . . . have a right . . .  to 
go into court himself in order to get a solution to 
his problem . . .  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 has, and this is a right 
to have the federal court determine whether or not you 
have been discriminated against.68

Senator Williams, the floor manager of § 2515, agreed.

Previously, there have been unrealistically high bar­
riers, which prevented or discouraged a federal em­
ployee from taking a case to court. This will no longer 
be the case. There is no reason why a federal employee 
should not have the same private right of action en­
joyed by individuals in the private sector, and I believe 
that the committee has acted wisely in this regard.69

It was in this context that Senator Cranston, the other 
draftsman of § 717(c), explained, “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.” 60

Legislative enactments in this area have long evinced a 
general intent to accord parallel or overlapping remedies 
against discrimination. Alexander v. Gardner-Denver, 415 
U.S. 36 (1974); Johnson v. Railway Express Agency, 43 
U.S.L.W. 4583 (1975). Congress has fashioned for federal

68118 Cong. Rec. 3967 (emphasis added).

69118 Cong. Ree. 4922 (emphasis added).

60118 Cong. Rec. 4929 (1972).



26

employees just such an array of independent remedies.61 
The administrative complaint procedure is one of several 
such independent remedies; it affords the defendant agency 
an opportunity to learn, through an informal process, the 
nature of the claim and to settle the case before court ac­
tion is commenced under section 717.62 But for federal 
complaints of employment discrimination, as for all others, 
“ Congress intended Federal courts to exercise final re­
sponsibility for enforcement of Title VII.” Alexander v. 
Gardner-Denver Co., 415 U.S. 36, 56 (1974). That responsi­
bility requires, whether the complaining employee works 
for the federal government or private industry, that the 
courts make an independent determination as to the ex­
istence of discrimination and do so on the basis of all 
available evidence, not merely that which may have come 
to light in an earlier proceeding as part of a non-judicial 
remedy. The courts cannot shirk that responsibility out of 
“ deference” to an arbitrator, administrative proceeding, 
or E.E.O.C. determination, or from a simple desire to 
avoid the work involved. “ Congress, in enacting Title VII, 
thought it necessary to provide a judicial forum for the 
ultimate resolution of discriminatory employment claims. 
It is the duty of courts to assure the full availability of 
this forum.” Alexander v. Gardner-Denver Co., 415 U.S. 
36, 60, n. 21 (1974).

Alexander rejected any “ deference” to arbitration deci­
sions because the arbitration process “ is not equivalent to 
judicial fact finding.” 415 U.S. at 57. The administrative

61 See e.g. 42 U.S.C. §1981 ; 5 U.S.C. § 706; 28 U.S.C. §§1331, 
1343(4), 1346, 1361.

62 Whether this failure of the Civil Service Commission to 
create a meaningful and fair fact-finding and adjudicatory 
process violates section 717 (b) is a question not presented by this 
case.



27

complaint process is equally inadequate to serve as a sub­
stitute for judicial resolution of the discrimination claim. 
As this Court noted in Morton v. Mancari, 41 L.Ed.2d 290, 
298 (1974), Congress authorized civil litigation under 
section 717 precisely because the complaint process “had 
proved ineffective for the most part,” and “had impeded 
rather than advanced the goal of the elimination of dis­
crimination in Federal employment.” 68 The defects in the 
existing complaints process are legion. (1) Most of the 
rights and procedures of civil trials, particularly discovery 
and compulsory process, are not available to the employee, 
and the rules of evidence are not adhered to. Compare 
Alexander v. Gardner-Denver Co., 415 U.S. at 57-58. (2) 
The decisions of the agencies and the Appeals Review 63

63 H. Rep. No. 92-238, pp. 23-24, stated:
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 process. The new procedure, intended 
to provide for the informal resolution of complaints, has, in 
practice, denied employees adequate opportunity for impartial 
investigation and resolution of complaints.

Under the revised procedure, effective July 1, 1969, the 
agency is still responsible for investigating and judging itself. 
Although the procedure provides for the appointment of a 
hearing examiner from an outside agency, the examiner does 
not have the authority to conduct an independent investiga­
tion. Further, the conclusions and findings of the examiner 
are in the nature of recommendations to the agency head who 
makes the final agency determination as to whether discrimina­
tion exists. Although the complaint procedure provides for 
an appeal to the Board of Appeals and Review in the Civil 
Service Commission, the record shows that the Board rarely 
reverses the agency decision.

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

See also, S. Rep. No. 92-415, p. 14.



28

Board do not purport to follow or even consider judicial 
constructions of Title VII, but proceed in an ad hoc man­
ner emphasizing compliance with established Civil Service 
procedures rather than federal civil rights laws. See id., 
pp. 56-57. (3) The primary responsibility for judging a 
claim of discrimination is left in the hands of the same 
agency accused of breaking the law, a practice expressly 
condemned by Congress which strips those decisions of any 
credibility. See Morton v. Mancari, 41 L.Ed.2d 290, 299 
(1974). Thus in the instant case the outside investigator 
and Appeals Examiner found discrimination, but their de­
cisions were subject to review by the base commander and 
the Secretary of the A ir Force, respectively, who both 
reversed that finding and ruled in favor of their agency.64 
(4) Neither the Commission or any other personnel in­
volved in the complaint process have significant expertise 
in problems of employment discrimination. Many of the 
key personnel are not attorneys and virtually none have 
prior experience with the federal agencies such as the 
Commission on Civil Rights, the Civil Rights Division, or 
E.E.O.C.65 66

Had Congress intended to preclude trials de novo, and 
to limit the district courts to determining whether the 
agency decision was supported by substantial evidence, it 
would have said so explicitly. In the past Congress has 
made known its desire to impose such limitations and ex­
pressly stated the standard it wished to establish.65 Section

64 See pp. 4, 7, supra.

66 Both the House and Senate Reports noted that the Commis­
sion “has been plagued by a general lack of expertise in recognizing 
and isolating the various forms of discrimination within the 
system” H. R. Rep. No. 92-238, p. 24; S. Rep. No. 92-415, p. 15.

66 See e.g., 5 U.S.C. § 706(2) (E ) (“substantial evidence” test); 
15 U.S.C. § 45 (findings to be upheld “if supported by evidence” ) ; 
15 U.S.C. § 21 (e) (“substantial evidence” test); 15 U.S.C. § 522



29

717 was proposed as part of a bill which had just such limi­
tations in its other provisions. The original House and 
Senate bills, as reported out of committee, would have 
authorized the E.E.O.C. to issue cease and desist orders. 
Both bills expressly limited court review of those orders, 
providing that

The findings of the Commission with respect to ques­
tions of fact if supported by substantial evidence on 
the record considered as a whole shall be conclusive. 
H. R. 1746, 92nd Cong., 706(k); S. 2515, §706(k), 91st 
Cong., 1st Sess.

This limitation in §7Q6(k) was debated at length in both 
houses, and the Senate considered and rejected a proposal 
to adopt a broader “ preponderance of the evidence” stan­
dard.* 67 The substantial evidence provision was opposed 
because of fear that the Commission would not be impartial, 
and that virtually any decision could meet that test,68 and

(facts found by agency “prima facie evidence” of those facts) ; 
29 U.S.C. § 160(e) (“substantial evidence” ) ;  49 U.S.C. §1 6 (2 )  
(findings of commission “prima facie” evidence of facts stated 
therein); 21 U.S.C. § 371(f) (4) (“substantial evidence” ) ;  21 
U.S.C. § 348(g) (2) (findings to be sustained “if based upon a 
fair evaluation of the entire record” ) ; 12 U.S.C. § 1848 (“ sub­
stantial evidence” ) .

67117 Cong. Rec. 31969; 118 Cong. Rec. 1657-1661, 3966 (1972).

68118 Cong. Rec. 1659 (Remarks of Senator Ervin) (“While 
the law as amended requires the findings of the Commission to be 
made by a preponderance of the evidence, that would be paying 
little more lip service to justice than the bill now before us. It 
would be absolutely nugatory because if the Commission did not 
obey that law and based its findings on less than a preponderance 
of the evidence, when the court reviewed the action of the Com­
mission it could not determine that the Commission had failed to 
obey the law if the findings of the Commission was supported by 
any substantial evidence— that is, anything above a scintilla, and 
anything constituting enough to resist a motion for a nonsuit in 
a civil court.” )



30

this provision contributed significantly to Congress’ deci­
sion not to give E.E.O.C. cease and desist powers. When 
the draftsmen of the House and Senate bills wrote a 
“ substantial evidence” rule into § 706 (k) but not into 
§ 717(c), it can only have been because they intended the 
“ civil action” under § 717(c) to be the same full trial 
de novo accorded to private employees. Even if Congress 
had expressly made administrative proceedings the exclu­
sive remedy and designated the Commission as solely re­
sponsible for enforcing Title VII, an aggrieved employee 
would still have been entitled to challenge the Commission 
or agency decisions as arbitrary and capricious. Dunlop 
v. Bachowski, 43 TJ.S.L.W. 4669 (1975). In authorizing 
such employees to bring a “ civil action” Congress clearly 
contemplated, not the limited review which already existed 
without section 717, but the same plenary hearing accorded 
private employees. Cf. Newman v. Biggie Park Enter­
prises, 390 U.S. 400, 402 n. 4 (1968).

The use of the “ substantial evidence” rule to thwart class 
actions against the federal government is also contrary to 
the clear intent of Congress. The government has hereto­
fore argued that judicial relief under section 171 cannot be 
afforded to all similarly situated victims of discrimination, 
but only to employees who have filed and processed ad­
ministrative complaints. That is precisely the limitation 
considered and rejected by Congress in 1972.69 The Senate 
Report recommending against any such limitation stated, 
“ The Committee agrees with the courts that Title VII 
actions are by their very nature class complaints, and that

69 The Erlenborn bill, H. K. 6760, and the Dominick bill, S. 2617, 
both would have forbidden the courts to grant relief to an indi­
vidual who “neither filed a charge nor was named in a charge or 
amendment thereto.” The House passed the Erlenborn bill, but 
the Senate rejected this provision, and in conference the House 
receded. 118 Cong. Rec. 7168, 7565 (1972).



31

any restrictions on such actions would greatly undermine 
the effectiveness of Title VII.” 70 Both the House and 
Senate Committees criticized the Civil Service Commission 
for failure to perceive the class nature of discrimination.71 
To the extent that denial of a trial de novo precludes class 
actions, that denial is inconsistent with Congress’ clearly 
expressed desire to sanction class actions against all forms 
of employment discrimination.

At issue in this case is whether, unlike all other private, 
state, and local employees, federal workers will he de­
prived of the most, if not the only, effective remedy against 
discrimination—a plenary judicial consideration of their 
case. The simple fact is that the administrative complaint 
process has been a failure. In fiscal 1974 3,435 formal 
complaints of discrimination were filed by federal em­
ployees, in addition to over 28,000 informal complaints.

70 S. Rep. 415, p. 27, 92nd Cong., 1st Sess. (1971). Senator 
Williams argued:

The courts have been particularly cognizant of the fact that 
claims under Title V II involve the vindication 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 eases in this area to date have 
recognized that Title V II claims are necessarily class com­
plaints and that, accordingly, it is not necessary that each 
individual entitled to relief under the claim be named in the 
original charge or in the claim for relief. 118 Cong. Rec. 
4942 (1972).

Congresswoman Abzug noted that
[t]he structure and pattern of employment discrimination 
will remain untouched unless large numbers of workers are 
affected. An award in favor of one complainant will do little 
to discourage an employer bent on discriminating against a 
class of employees, but an award— or even the possibility of 
an award— on behalf of an entire class can effectively dis­
courage this kind of unlawful discrimination. 117 Cong. Rec 
32097 (1971).

71 H. R. Rep. No. 92-238, pp. 24-25 (1971); Sen. Rep. No. 92-415 
p. 14 (1971).



32

The agencies and Civil Service Commission found dis­
crimination in only 170 cases, and in most of those cases 
refused to award either back pay or a promotion.72 It is, as 
a practical matter, virtually impossible for a Federal em- 
employee to win meaningful relief through the administra­
tive process. The decision of the Tenth Circuit, limiting 
section 717 actions to “judicial review,” makes it equally 
impossible for such an employee to win relief in the courts. 
Experience has already clearly demonstrated that, in the 
absence of a McDonnell-Douglas trial de novo, the govern­
ment is assured of victory in any section 717 case regard­
less of whether the defendant agency is guilty of discrimi­
nation.73 Such an emasculation of section 717 would be 
clearly inconsistent with the intent of Congress and with 
the statutory and constitutional commitment to preventing 
discrimination in federal employment.

72 Memorandum of Anthony Hudson to Irving Kator, Pre­
complaint Counseling and Discrimination Complaint Activity 
During Fiscal Year 1974.

73 See p. 19, supra.



33

CONCLUSION

For the above reasons a Writ of Certiorari should issue 
to review the judgment and opinion of the Tenth Circuit.

Respectfully submitted,

Jack Greenberg 
James M. Nabrit, III 
Charles S tephen Ralston 
Melvyn Leventhal 
Barry L. Goldstein 
B ill Lann Lee 
E ric Schnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Petitioner



A P P E N D I X



U nited States District Court 
W estern District oe Oklahoma

No. Civ-73-591-E

Opinion of United States District Court

A nthony M. Salone, Jr.,

v.

Plaintiff,

U nited States oe A merica, et al.,

Defendants.

April 30, 1974

E ubanks, D. J .:

The Plaintiff is an employee of OCAMA at Tinker Air 
Force Base, Oklahoma City, Oklahoma. On April 11, 1972 
he complained in writing to the Commander, Tinker Air 
Force Base, that his supervisors were engaging in re­
prisals against him because he had filed an earlier com­
plaint of discrimination, and alleged that the reprisals 
had continued over a period of five years. More specif­
ically he complained that the alleged reprisals consisted 
of appraisals which made it impossible for him to achieve 
promotion and that he had been frustrated by his super­
visors in his efforts to gain a broader experience in order 
to qualify for promotion.

The Commander forwarded the complaint to the agency’s 
Chief EEC Counselor who, following interviews with the 
Plaintiff and witnesses, filed a report wherein he found 
that management had not clearly refuted the allegations

la



2a

of the Plaintiff and recommended that criteria for mea­
suring the Plaintiff’s performance be established and that 
the Plaintiff be alerted to these criteria and how they 
could be met. The record is silent on the action taken, 
if any, on the recommendations of the EEO Counselor.

On June 28, 1972 Plaintiff filed a formal written com­
plaint alleging racial discrimination. An investigation, ex­
tending over a period of forty days, was made by investi­
gators from Kelly Air Force Base, Texas. Their Report 
found that the Research and Reconciliation Unit, in which 
Plaintiff is employed, “ is a fertile place for complaints 
unless management is made aware of this condition and 
efforts are not initiated to correct the situation, there will 
be more complaints generating from this organization.” 
The Report did not specifically find discrimination, but 
rather “ favoritism” and did not directly answer many 
of the Plaintiff’s allegations.

The Plaintiff was advised by the Commander, OCAMA, 
on November 10, 1972 that he found no evidence of racial 
discrimination, but that he had instituted certain man­
agement-administrative improvements which he felt were 
required based on his determination that several employees 
were “treated as the Plaintiff was.”

Thereupon and on November 16, 1972 the Plaintiff re­
quested a hearing before an Appeals Examiner from an­
other agency. The request was honored and a hearing 
was held on January 8 and 9, 1973. The Hearing Examiner 
found that “ the evidence . . . does not indicate to me an 
environment of discrimination against blacks, but rather 
a picture of discrimination directed at one individual—■ 
Mr. Salone. . . . There is abundant evidence that the 
quality of supervision in the Research and Reconciliation 
Unit [in which Plaintiff is employed] is highly question­

Opinion o f United S tates D istrict Court



3a

able. . . . [Plaintiff’s supervisor] “has given preferential 
treatment to certain favored employees, although not on 
the basis of race or color. . . . There is every likelihood 
that Mrs. Massie [Plaintiff’s supervisor] has consciously 
denied Mr. Salone the opportunity to perform duties . . . 
the performance of which he feels would enhance his 
chances to appear on profile. I cannot agree, however, 
that his performance of these duties would enhance his 
promotional chances. . . . My conclusion is that there is 
no evidence that Mr. Salone has been discriminated against 
in connection with his most recent supervisory appraisal. 
His concern that he was disadvantaged by appraisal, par­
ticularly in the area of quality and quantity of work, is 
not supported. . . .”

The Examiner made seven recommendations, of which 
numbers one, two, three and five were addressed to the 
fixing of responsibility and corrective action for the dis­
crimination. The Director of Equal Employment Oppor­
tunity, Office of the Secretary of the Air Force, notified 
the Plaintiff on March 9, 1973 that the Record did not 
support his allegations of racial discrimination and recom­
mendations numbered one, two, three and five of the 
Examiner’s Report were rejected by the Director’s find­
ings. Thereafter and on April 2, 1973 the Plaintiff ap­
pealed the Director’s decision to the Board of Appeals 
and Review, Civil Service Commission which Board, on 
July 30, 1973, affirmed the decision of the Director, EEO, 
without comment. Thereafter and on June 28, 1973 this 
action was instituted, seeking a trial de novo. The Defen­
dants have moved to dismiss for summary judgment.

The Complaint names as Party Defendants the indi­
vidual members of the United States Civil Service Com­
mission and three individuals who served in supervisory

Opinion o f United S tates D istrict Court



4a

positions in Plaintiff’s unit as Tinker AFB relying on 
42 U.S.C.A. §§ 2000e-5 and 2000e-16. Section 2000e-16(a) 
expressly provides that “ all personnel actions affecting 
employees . . .  in military departments . . . shall he free 
from any discrimination based on race, color, religion, 
sex or national origin.” Section 2000e-16(b) expressly 
provides, with exceptions not pertinent here, that “the 
Civil Service Commission shall have authority to enforce 
the provisions of subsection (a) of this section through 
appropriate remedies; and 2000e-16(c) provides that within 
thirty days of receipt of notice of final action taken by 
the Civil Service Commission upon an appeal from a 
decision of a governmental agency on a complaint of dis­
crimination based on race, color, religion, sex or national 
origin, brought pursuant to subsection (a) of this section, 
“an employee . . .  if aggrieved by the final disposition of 
his complaint . . . may file a civil action as provided in 
2000e-5 of this title, in which civil action the head of the 
department, agency or unit, as appropriate, shall be the 
defendant.” Thus it clearly appears that the individual 
members of the Civil Service Commission and the Plain­
tiff’s supervisors are not proper Party Defendants.

The courts have no general supervisory power over the 
acts of officials involving the exercise of judgment in the 
executive department of the government. See Rosenman 
v. Levbarg, CA 3, 1970, [3 EPD §8069] 435 F.2d 1286, 
in which Senior Circuit Judge Murrah of the Court of 
Appeals, Tenth Circuit, sat by designation. The Court 
there said:

“ Only well-founded claims of discrimination in federal 
employment because of race, color, religion, sex or na­
tional origin, see 42 U.S.C. Sections 2000e-2 and 2000e-5; 
or union activity, see Executive Order 11491, are cognizable

Opinion o f  United S tates D istrict Court



5a

in the courts. And then only to determine whether admin­
istrative due process has been accorded to the alleged 
discriminatee, i.e. whether a fair and open hearing with 
the right of confrontation and cross-examination was ac­
corded on the discriminatory charges.”

The law in the case at hand was settled in a well-rea­
soned opinion in Hackley v. Johnson, et al., D.C. Dist. Col., 
1973, [6 EPD U8725] 360 F.Supp. 1247, wherein federal 
government employees claimed discrimination on the basis 
of race in the employment opportunities afforded to them 
by the Government and wherein the Court sustained the 
Defendants’ motions for summary judgment. The Court 
held that the Equal Employment Opportunity Act, 42 
IT.S.C.A. 2000e-16 on which the Plaintiffs there, as well as 
the Plaintiff herein, relied, does not require that one who 
is dissatisfied with the outcome of administrative hearings 
and who seeks to vindicate his claim of racial discrimina­
tion, be granted a trial de novo. A reading of the opinion 
is commended to counsel. Important here is that the Court 
held that:

“ The District Court is required by the Act to examine 
the administrative record with utmost care. I f it deter­
mines that an absence of discrimination is affirmatively 
established by the clear weight of the evidence in the 
record, no new trial is required.” p. 1252.

The Court is not required, therefore, to reweigh the 
evidence or to make an independent determination of the 
facts. The finding of the Secretary of the Air Force is 
not to be disturbed merely because the evidence is con­
flicting. His finding is against the “clear weight of the 
evidence” only if a conclusion opposite to his determina­
tion is clearly evident. Kelly v. Civil Service Commission, 
111., 1953, 175 N.E.2d 630.

Opinion o f  United S tates D istrict Court



6a

The Court has examined the Record herein most care­
fully. It discloses that Plaintiff was afforded a fair hear­
ing with the right of confrontation and cross-examination. 
The Complaint alleges that the Defendants “have caused 
this Plaintiff great damage by the use of a grading system 
which has continuously and systematically, since the afore­
said date [1966] caused this Plaintiff to be underrated.” 
It further alleges “ that the low rating of this Plaintiff 
was brought about by racial prejudice and by reprisal 
upon the part of the Defendants, and each of them, in 
response to an earlier complaint filed by this Plaintiff 
against these Defendants.” The general allegation is that 
“ the natural and proximate result of this grading system 
has caused this Plaintiff to forego promotions and up­
grades in pay” which he would otherwise have received.

Absence of the alleged discrimination is affirmatively 
established by the clear weight of the evidence in the 
record. The affidavits of the three supervisory personnel 
defendants deny the allegations of the Complaint. These 
affidavits stand uncontroverted in the Record. Moreover, 
the Report of EEC Complaint Examiner concluded that:

“ . . . there is no evidence that Mr. Salone has been dis­
criminated against in connection with his most recent 
supervisory appraisal. His concern that he was disad­
vantaged by appraisal, particularly in the areas of quality 
and quantity of work, is not supported, in view that of 
the fact that he received the maximum score on the quality 
and quantity factors.”

The Record and pleadings are almost 500 pages in length. 
They have been reviewed with utmost care. They clearly 
and affirmatively show an absence of the alleged discrim­
ination against the Plaintiff. Accordingly,

Opinion o f United S tates D istrict Court



7a

It Is Ordered, That Defendants’ Motion for Summary 
Judgment affirming the decision of the Board of Appeals 
and Review, United States Civil Service Commission, af­
firming the decision of the Secretary of the Department 
of the Air Force, be and the same is hereby sustained.

Counsel for Defendants will prepare an appropriate 
Order for approval and filing herein.

The Clerk of the Court is directed to mail a copy hereof 
to counsel of record.

Opinion o f United S tates D istrict Court



8a

United States Coitbt oe A ppeals 
Tenth Cibcuit

No. 74-1475

Opinion of United States Court of Appeals
for the Tenth Circuit

A nthony M. Salone, Jr.,

v.
Appellant,

U nited States op A mebica, et al.,

Appellees.

Feb. 21, 1975

Robert B. Smith, of Miskovsky, Sullivan & Miskovsky, 
Oklahoma City, Okl., for appellant.

William R. Burkett, U. S. Atty., and John E. Green, 
Asst. U. S. Atty., for appellees.

Before Lewis, Chief Judge, and Seth and M cW illiams, 
Circuit Judges.

. Seth, Circuit Judge.

Appellant Salone is a civilian employee at the Oklahoma 
City Air Materiel Area (OCAMA), Tinker Air Force Base, 
Oklahoma. In April 1972, Salone complained to the Com­
mander of Tinker AFB that his supervisors were discrim­
inating against him because of his race, and in reprisal 
for a discrimination complaint filed by him some five 
years previously. This complaint was referred to the



9a

agency’s Chief EEO Counselor who interviewed Salone 
and the witnesses and made recommendations. Further 
complaints, hearings, and recommendations followed, and 
in March 1973 Salone was notified by the Director of Equal 
Employment Opportunity, Office of the Secretary of the 
Air Force, that his allegations of racial discrimination 
were not supported by the record. The decision of the 
Director was affirmed without comment by the Civil Ser­
vice Commission Board of Appeals and Review.

Having exhausted his administrative remedies through 
the Civil Service machinery, Salone filed this action in the 
District Court pursuant to 42 U.S.C. §§ 2000e-16 and 
2000e-5. He requested a trial de novo on his allegations 
of discrimination, rather than a review of the administra­
tive record. Defendant filed a motion for summary judg­
ment and asking that the action be dismissed for lack of 
subject matter jurisdiction.

The trial judge found that review of the administrative 
record was the procedure required, and that the record 
showed an absence of discrimination. He then granted 
the motion for summary judgment, and further found 
an absence of subject matter jurisdiction.

The only issue presented on this appeal is whether a 
federal employee filing a civil action under 42 IT.S.C. 
§ 2000e-16 is entitled to a trial de novo or judicial review 
of the administrative record. The statute is silent on this 
question. 42 U.S.C. §2000e-16(c) provides that a federal 
employee who has a complaint of discrimination based 
on race, color, religion, or sex may, within certain time 
limits, “ file a civil action as provided in section 2000e-5 
of this title.” Section 2000e-5 governs civil actions by 
private employees. 42 IT.S.C. §2000e-16(d) reads: “ The

Opinion o f United S tates Court o f A ppeals
fo r  the Tenth Circuit



10a

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

There is no dispute that a private employee filing an 
action pursuant to 42 U.S.C. §§2000e-5(f) through (k) is 
entitled to a trial de novo. McDonnell Douglas Corp. v. 
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Two 
early cases applied this holding to actions under 42 U.S.C. 
§ 2000e-16(c) and concluded that the 1972 amendment to 
the Equal Employment Opportunity Act was intended to 
extend to federal employees the same procedure that was 
available to private employees, and thus a federal em­
ployee should be entitled to a trial de novo rather than 
judicial review of the administrative record. Henderson 
v. Defense Contract Administration Services Region, Hew 
York, 370 P.Supp. 180 (S.D. N .Y .); Thompson v. United 
States Dep’t of Justice, Bureau of Narcotics & Dangerous 
Drugs, 360 F.Supp. 255 (N.D. Cal.).

A separate line of cases also developed which main­
tained a distinction between private and federal employees. 
These cases relied on decisions concerning discharge of 
federal employees. In such actions, brought under 5 U.S.C. 
§ 701 et seq., a federal employee is entitled only to review 
by the federal district court of the administrative record. 
Trials de novo are not provided. Polcover v. Secretary 
of Treasury, 477 F.2d 1223 (D.C. Cir.), cert, denied, 414 
U.S. 1001, 94 S.Ct. 356, 38 L.Ed.2d 237; Rosenman v. Lev- 
barg, 435 F.2d 1286 (3d Cir.); Dabney v. Freeman, 358 
F.2d 533 (D.C. Cir.); Gordon v. Bright, 306 F.Supp. 252 
(W.D. Okla.), aff’d 419 F.2d 835, cert, denied, 397 U.S. 
1057, 90 S.Ct. 1403, 25 L.Ed.2d 674.

In Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.), the 
court considered the question whether a federal employee

Opinion o f  United S tates Court o f A ppeals
fo r  the Tenth Circuit



11a

is entitled to a trial de novo after being unsuccessful in 
administrative agency proceedings on a complaint of em­
ployment discrimination. Tlie court considered the history 
of the 1972 Equal Employment Opportunity Act, the poten­
tial burden on the federal judiciary, duplication of the 
administrative process, prior federal employee discharge 
cases, and the need for prompt, consistent decisions in 
discrimination matters, and said: “Viewing the Act and 
its history broadly, Congress intended to guarantee access 
to the courts— ‘a civil action’—to eliminate previous bar­
riers but not to start the process anew.”  Thus the court 
concluded that the Act provided for “access” but once 
there a trial de novo was not required under 42 U.S.C. 
§ 2000e-16.

The holding in Hackley was followed in Tomlin v. United 
States Air Force Medical Center, 369 F.Supp. 353 (S.D. 
Ohio), and Handy v. Gayler, 364 F.Supp. 676 (D.Md.). 
The district court for the Northern District of California, 
relying on Hackley and Handy, reversed its earlier deci­
sion in Thompson v. United States Dep’t of Justice, Bureau 
of Narcotics & Dangerous Drugs, supra, and held that a 
trial de novo was not required under 42 U.S.C. § 2000e-16. 
Thompson v. United States Dep’t of Justice, Bureau of 
Narcotics & Dangerous Drugs, 372 F.Supp. 762, rev’g 360 
F.Supp. 255. No decisions by the United States Court of 
Appeals on this point have been found.

The legislative history is unclear. Senator Williams 
interpreted the Act as providing only review of agency 
(Civil Service Commission) proceedings. 118 Cong. Bee. 
S2280 (daily ed. Feb. 22, 1972) (History at 1727). Senator 
Cranston originally agreed with Senator Williams, 118 
Cong. Bee. S2287 (daily ed. Feb. 22, 1972) (History at

Opinion o f  United S tates Court o f A ppeals
fo r  the Tenth Circuit



12a

1744). Later he corrected himself and stated that 42 
U.S.C. § 2000e-16 provides for a trial de novo. 119 Cong. 
Rec. S1219 (daily ed. Jan. 23, 1973).

A  distinction between federal and private employees is 
justified for the reasons stated by the court in Hackley v. 
Johnson, 360 F.Supp. 1274 (D.D.C.), and by the fact that 
the administrative proceedings relating to Government em­
ployees are always handled under the Civil Service system 
which has developed procedures and standards applicable 
to such employees. The complaints of the nature here 
considered should be handled as others, and if they reach 
the courts, the procedure should be consistent with those 
under 5 U.S.C. § 701 et seq. Thus there is a valid distinc­
tion to be made, and we hold that a de novo hearing is 
not here required.

The record before us, derived from the Civil Service 
system hearings and reviews, is detailed, and the facts 
are thoroughly developed. In the event a trial court should 
find a need for additional facts on a particular issue, the 
matter may be remanded.

Our decision in Nickol v. United States, 501 F.2d 1389 
(10th Cir.), was filed shortly after summary judgment was 
granted against Salone. And in any event the opinion of 
the district judge gives sufficient indication of the facts 
relied on by him from the administrative record to support 
his conclusions as to the administrative decision.

The order of the district court affirming the decision of 
the Civil Service Commission Board of Appeals and Re­
view is affirmed.

Opinion o f  United S tates Court o f  A ppeals
fo r  the Tenth Circuit



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