Morris v. Secretary Defense

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

8-22-2005

Morris v. Secretary Defense

Precedential or Non-Precedential: Precedential

Docket No. 04-1808

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

No. 04-1808

WILLIAM D. MORRIS

v.

DONALD H. RUMSFELD,

SECRETARY OF DEFENSE,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

D.C. Civil Action No. 01-cv-01729

(Honorable Christopher C. Conner)

Argued May 9, 2005

Before: SLOVITER and FISHER, Circuit Judges,

and POLLAK,* District Judge.

*Honorable Louis H. Pollak, Senior District Judge for the

United States District Court for the Eastern District of

Pennsylvania, sitting by designation.

(Filed August 22, 2005)

PETER D. KEISLER

Assistant Attorney General

THOMAS A. MARINO

United States Attorney

MARLEIGH D. DOVER

JONATHAN H. LEVY (argued)

Attorneys, Appellate Staff

Civil Division, Room 7231

Department of Justice

950 Pennsylvania Ave., N.W.

Washington, D.C. 20530-0001

Attorneys for Appellant

RALPH B. PINSKEY (argued)

Pinskey & Foster

121 South Street

Harrisburg, PA 17101

Attorney for Appellee

OPINION OF THE COURT

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POLLAK, District Judge:

This appeal arises out of efforts by appellee William D.

Morris (“Morris”), a former employee of the federal Defense

Logistics Agency (“DLA”), to recover damages for alleged

disability discrimination in the workplace. Morris obtained a

favorable award from the EEOC, after extensive

administrative proceedings, but now seeks to recover

increased compensatory damages in this federal action under

42 U.S.C. § 2000e-16(c). We must decide whether, in that

context, the District Court may properly accept the EEOC’s

finding of liability as binding, while providing a de novo trial

as to the amount of damages – that figure having been

determined not by the EEOC, but by the DLA. For the

reasons stated herein, we find such a partial de novo trial

inappropriate.

I.

At the time this dispute arose, Morris worked for the

DLA, an agency of the United States Department of Defense,

as a warehouse fork-lift operator.1 Morris is disabled due to

arthritis, degenerative disc disease, and hypertension. In

January and February of 1992, Morris gave the DLA letters

from his doctor stating that Morris needed reasonable

accommodation of his disability, and should be permanently

reassigned to an office job. On February 27, 1992, a DLA

1

The version of the facts recounted here is undisputed,

for our purposes.

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doctor confirmed this need for reassignment.

Despite the doctors’ recommendations, Morris was not

reassigned, but remained at work in his warehouse position.

On April 11, 1992, he injured his back in the course of his

duties there. Morris was unable to work or care for himself

for roughly two months after the injury, and he continues to

suffer from its effects.

Morris filed a complaint with the EEOC on August 25,

1992. On November 27, 1995, after a hearing, an

Administrative Law Judge (“ALJ”) at the EEOC issued a

recommended decision. The ALJ found that Morris was a

“qualified individual with a disability” and that the DLA had

“intentionally discriminated” against him between February

27, 1992, and April 11, 1992, by failing, in spite of his

repeated requests, to make any attempt to accommodate his

medical restrictions. The ALJ found that the DLA had not

discriminated against Morris after April 11, 1992. She

recommended, among other remedies, that the DLA provide

compensatory damages to Morris for his injury.

On February 5, 1996, the DLA issued a decision that

rejected the ALJ’s recommended finding of discrimination

before April 11, 1992, but accepted her finding of no

discrimination after that date. Morris appealed this finding of

no discrimination to the EEOC.

In October 1998, the EEOC issued a decision restoring

the ALJ’s recommended finding that the DLA had

discriminated against Morris between February 27 and April

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11, 1992. The EEOC awarded some relief directly, but

remanded the matter to the DLA for a determination of the

appropriate compensatory damages amount. The DLA sought

reconsideration of the EEOC’s liability decision, which the

EEOC denied in September 2000.

In June 2001, the DLA issued a decision awarding

Morris compensatory damages of $12,500.00 for his April

1992 injury. This decision could have been appealed either to

the EEOC or to a federal district court.

Morris did not appeal the DLA’s compensatory

damages decision to the EEOC. Instead, he filed this action

in the Middle District of Pennsylvania, seeking a jury trial to

determine the amount of compensatory damages that he

should receive. The DLA has paid the $12,500 that it

determined was due to Morris, and complied with the other

forms of relief awarded by the EEOC, but Morris seeks a

higher damages award.

II.

In the District Court, Morris moved for partial

summary judgment as to liability, contending that the DLA

was bound by the EEOC’s finding of intentional

discrimination. The District Court granted Morris’s motion

on September 9, 2003, finding that because two separate

administrative orders had been issued regarding Morris’s

claim – the EEOC determination of liability, and the DLA

determination of damages – Morris could appeal the second,

without permitting the court to re-examine the first.

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On December 23, 2003, the District Court granted the

DLA’s motion to certify the summary judgment decision for

interlocutory appeal. In March 2004 this court granted

permission for the interlocutory appeal. We have jurisdiction

under 28 U.S.C. § 1292(b).

III.

This appeal presents a question of first impression in

this court: whether, when pursuing an employment

discrimination claim in federal court, a federal employee may

elect to enforce only the liability determination of an EEOC

ruling, while seeking a de novo jury trial on the question of

damages. In reviewing an interlocutory appeal under 28

U.S.C. § 1292(b), this court exercises plenary review over the

question certified. Pub. Interest Research Group of N.J., Inc.

v. Hercules, Inc., 50 F.3d 1239, 1246 (3d Cir. 1995).

A. The District Court’s Decision

As a federal employee, Morris brought his disability

discrimination claim under the Rehabilitation Act, which

provides federal employees protection from discrimination

similar to that available to private sector employees under the

Americans with Disabilities Act. See 29 U.S.C. § 791(g)

(Rehabilitation Act anti-discrimination standard); 42 U.S.C. §

12112 (ADA standard).

Although the Rehabilitation Act provides essentially

the same relief as the ADA, the administrative process is

more complex under the Rehabilitation Act. See 29 C.F.R. §§

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1614.101 et seq. A federal employee must first bring a claim

of discrimination on grounds of disability to an internal

complaints process within the employing agency. 29 C.F.R. §

1614.106. If dissatisfied with the agency’s resolution, the

employee may then bring the claim to the EEOC, which will

investigate the claim, conduct a hearing if the employee so

requests,2 and issue a recommended decision. Id.; 29 C.F.R. §

1614.109. The agency then reviews the EEOC

recommendation, and issues another decision. 29 C.F.R. §

1614.110. The employee may again appeal to the EEOC, as

Morris did here. The EEOC’s second decision may complete

the administrative adjudicatory process, or may, as happened

here, lead to remand of some aspect of the matter to the

agency, so that the agency’s decision on remand at last

concludes the administrative adjudicatory process. Id.

On conclusion of the administrative proceeding, a

district court may provide two distinct forms of relief. First, a

federal employee who prevails in the administrative process

may sue in federal court to enforce an administrative decision

with which an agency has failed to comply. Such an

enforcement action does not trigger de novo review of the

merits of the employee’s claims. See, e.g., Moore v. Devine,

780 F.2d 1559, 1563 (11th Cir. 1986); Haskins v. U.S. Dep’t

of the Army, 808 F.2d 1192, 1199 (6th Cir. 1987).

2

Either sua sponte or at a party’s request, the ALJ

reviewing the claim may decline to conduct a hearing, or limit

the hearing’s scope, on finding that material facts are not in

genuine dispute. 29 C.F.R. § 1614.109.

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Alternatively, a federal employee unhappy with the

administrative decision may bring his or her claims to a

district court, under Section 505(a) of the Rehabilitation Act,

29 U.S.C. § 794a(a), and receive the same de novo

consideration that a private sector employee enjoys in a Title

VII action, under 42 U.S.C. § 2000e-16(c).3 Chandler v.

Roudebush, 425 U.S. 840, 863 (1976) (finding that 42 U.S.C.

§ 2000e-16(c) provides a trial de novo).

As the District Court recognized, this case does not

involve an enforcement action.4 Rather, the basis for Morris’s

claims is 42 U.S.C. § 2000e-16(c)’s provision for de novo

3

The precise language of Section 505(a) of the

Rehabilitation Act reads, in relevant part, as follows:

[T]he remedies, procedures, and rights set forth

in section 717 of the Civil Rights Act of 1964

(42 U.S.C. 2000e-16) . . . shall be available,

with respect to any complaint under section 791

of this title [for disability discrimination], to any

employee or applicant for employment

aggrieved by the final disposition of such

complaint, or by the failure to take final action

on such complaint.

29 U.S.C. § 794a(a)(1).

4

As it is undisputed that the DLA has paid the entire

amount of compensatory damages awarded to Morris in the

administrative process, as well as providing the other relief

awarded, there is nothing left for the District Court to enforce.

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consideration of discrimination claims in the federal courts,5

as it applies to disability discrimination claims under Section

505(a) of the Rehabilitation Act. Citing Black’s Law

Dictionary, the District Court observed that as a general

matter de novo consideration means “a new trial on the entire

case - that is, on both questions of fact and issues of law -

conducted as if there had been no trial in the first instance,”

noting that “[s]everal federal courts have determined that a

plaintiff who seeks de novo review of a damage award must

also re-litigate the merits of the underlying discrimination

claim.” However, the District Court decided to “limit its de

novo review . . . to the issue of compensatory damages,”

because the EEOC finding of liability and the DLA

compensatory damages award had been issued in separate

administrative decisions. The District Court based its

approach on the route followed by the district court in

Malcolm v. Reno, 129 F. Supp. 2d 1 (D.D.C. 2000). In that

case, plaintiff Malcolm had claimed disability discrimination

after the FBI retracted a job offer on discovering that he had

chronic lymphocytic leukemia. Id. at 2. As in this case, the

administrative decision of Malcolm’s claim was made in two

parts: an administrative determination of liability and some

remedies, which Malcolm did not appeal, followed by a

5

The statute itself does not specify the scope of the

district court’s inquiry, stating only that an aggrieved

employee “may file a civil action as provided in section

2000e-5 of this title.” 42 U.S.C. § 2000e-16(c). Chandler

established that this provision should be viewed as creating a

right to de novo consideration of the employee’s claims.

Chandler, 425 U.S. at 863.

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decision on compensatory damages, which he sought to

challenge in the district court without upsetting the earlier

liability ruling. Malcolm also sought to enforce the earlier

administrative ruling’s requirement that he be allowed to

participate in the next scheduled session of special agent

training.6 The FBI had refused to comply with this

requirement.

The Malcolm court granted Malcolm’s motion for a

declaratory judgment that he need not re-litigate liability. The

court also granted his request for immediate injunctive relief

to enforce the administrative award of remedies, requiring the

FBI to permit him to participate in the next scheduled session

of the special agent training program.7

6

Malcolm had requested immediate relief because no

other training sessions were scheduled before his 37th

birthday. Under FBI rules, Malcolm would be ineligible to

begin the training after that date.

7

Although the District Court here did not discuss it,

Malcolm’s declaratory relief – which declared that the

administrative finding of liability was binding on the FBI,

despite Malcolm’s de novo suit for increased damages – was

short-lived. The Malcolm court amended its order less than a

week after it was issued, and vacated the declaratory relief,

after concluding “that it was premature in the context of

granting the plaintiff’s motion for a preliminary injunction to

also grant the plaintiff’s requested declaratory relief and order

the defendant to comply with the May 3, 1999 decision [that

contained the administrative finding of disability].” Malcolm,

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Relying on Malcolm, the District Court found in the

case at bar that “[s]eeking de novo review of the June 11,

2001 final agency decision [by the DLA] does not place the

EEOC’s discrimination determination at risk of de novo

review.”

B. The Scope of Trial Under 42 U.S.C. § 2000e-16(c)

The language of the statutory provision – 42 U.S.C. §

2000e-16(c) – that provides the foundation for Morris’s suit is

in some tension with the District Court’s approach. Section

2000e-16(c) allows an employee in Morris’s position to “file a

civil action as provided in section 2000e-5,” 8 governed,

according to 42 U.S.C. § 2000e-16(d), by “[t]he provisions of

section 2000e-5(f) through (k) of this title, as applicable.”

Morris’s suit is thus subject to 42 U.S.C. § 2000e-5(g), which

129 F. Supp. 2d at 11.

8

More fully, 42 U.S.C. § 2000e-16(c) provides as

follows:

[Subject to certain time limitations,] an

employee or applicant for employment, if

aggrieved by the final disposition of his

complaint, or by the failure to take final action

on his complaint, may file a civil action as

provided in section 2000e-5 of this title, in

which civil action the head of the department,

agency, or unit, as appropriate, shall be the

defendant.

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authorizes a federal court to provide a remedy “[i]f the court

finds” that discrimination occurred. This language appears to

contemplate that a judicial remedy must depend on judicial –

not administrative – findings of discrimination, and no other

statutory language suggests that this requirement should

change if a claimant does in fact present an administrative

finding of liability to the court.

The relevant case law is not monolithic. But we find

that the cases that have analyzed the issues in greatest depth

have come to conclusions harmonious with what seems the

clear import of the statutory language. We turn now to the

case law.

Federal courts try plaintiffs’ claims de novo in actions

under 42 U.S.C. § 2000e-16(c). Chandler, 425 U.S. at 863.

Trial de novo means trial “as if no trial had been had in the

first instance,” and requires an independent judicial

determination of the issues in the case. See Timmons v.

White, 314 F.3d 1229 (10th Cir. 2003) (collecting cases, and

citing Black’s Law Dictionary). Thus, it would seem that a de

novo trial under 42 U.S.C. § 2000e-16(c) requires the court to

decide the issues essential to the plaintiff’s claims, including

liability, without deferring to any prior administrative

adjudication.

Although the Supreme Court has not directly addressed

the precise issue before us, dictum of the Court in Chandler

clearly implies that agency findings, while pertinent for a

reviewing court, are not to be regarded as binding on the

court. In the course of its analysis, the Court observed that

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“[p]rior administrative findings made with respect to an

employment discrimination claim may, of course, be admitted

as evidence at a federal-sector trial de novo.” Chandler, 425

U.S. at 863 n.39. If agency decisions were intended to have

any binding effect, the Court’s observation would have been

superfluous.

Two courts of appeals have taken this view of the

statute and of Chandler in cases presenting the same question

we consider here.9 In Timmons, the Tenth Circuit reviewed

the case of a plaintiff who claimed disability and age

discrimination after his temporary appointment at an

Oklahoma ammunition plant was not renewed. Timmons, 314

F.3d at 1230-31. The employing agency eventually complied

in full with the relief ordered by the EEOC, but Timmons

remained dissatisfied with that relief. Id. at 1231. Reviewing

the district court’s grant of summary judgment to the

government, the Tenth Circuit found that fragmented review

9

In circuits in which courts of appeals have not yet

spoken, the prevailing trend among the district courts, too, is

to refuse to allow fragmented review of the type Morris seeks

here. See, e.g., John v. Potter, 299 F. Supp. 2d 125 (E.D.N.Y.

2004); Simpkins v. Runyon, 5 F. Supp. 2d 1347, 1351 (N.D.

Ga. 1998). Two decisions from courts within this circuit are

in this group. Ritchie v. Henderson, 161 F. Supp. 2d 437

(E.D. Pa. 2001); Cocciardi v. Russo, 721 F. Supp. 735, 738

(E.D. Pa. 1989).

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was not available.10 Id. at 1233. Addressing the differing

conclusions reached by other courts that had already

confronted the issue, the Tenth Circuit concluded that “the

better-reasoned cases hold that a plaintiff seeking relief under

§ 2000e-16(c) is not entitled to litigate those portions of an

EEOC decision believed to be wrong, while at the same time

binding the government on the issues resolved in his or her

favor.” Id. at 1233. Very recently, the D.C. Circuit reached

the same result in Scott v. Johanns, 409 F.3d 466 (D.C. Cir.

2005). Like Timmons, the Scott court held as follows:

Under Title VII, federal employees who secure

a final administrative disposition finding

discrimination and ordering relief have a choice:

they may either accept the disposition and its

award, or file a civil action, trying de novo both

liability and remedy. They may not, however,

seek de novo review of just the remedial award.

Id. at 471-72.

Timmons and Scott built on earlier decisions that had

hinted at the same result, in contexts that did not demand a

direct resolution of the issue. In Moore v. Devine, 780 F.2d

1559, 1564 (11th Cir. 1986), the Eleventh Circuit had

10

The court also found, as an initial matter, that

Timmons’s action was properly characterized as a civil action

under 42 U.S.C. § 2000e-16(c), not an enforcement action.

Id. at 1232. To the extent that Morris attempts to characterize

his federal action as an enforcement action, we follow

Timmons in finding this unpersuasive.

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distinguished between enforcement and de novo actions,

finding that when a plaintiff “proceeds to trial de novo on the

very claims resolved by the EEOC, he or she cannot complain

when the district court independently resolves the claims on

the merits.” Id. Likewise, in another early case, Haskins v.

Department of the Army, 808 F.2d 1192 (6th Cir. 1987),

which involved an enforcement action, the Sixth Circuit noted

that where an employee seeks a de novo trial of discrimination

claims, “the district court is not bound by the administrative

findings.” Id. at 1199 n.4.

A few decisions by other courts, led by Pecker v.

Heckler, 801 F.2d 709 (4th Cir. 1986), have relied on Moore

and Haskins to endorse limited review in de novo actions

under 42 U.S.C. § 2000e-16(c). We find those decisions

unpersuasive, however, because they appear not to have

distinguished between enforcement actions (which do not

provide de novo review) and de novo actions under § 2000e-

16(c).11

11

In Pecker, the Fourth Circuit cited Moore in a

footnote stating, without qualification, that “the defendants

are bound by the EEOC’s findings of discrimination and

retaliation,” and that the plaintiff was therefore entitled to an

order from the district court affirming the EEOC’s liability

ruling. Pecker, 801 F.2d at 711 n.3. However, the portion of

Moore that Pecker cites refers to enforcement suits: it states

that federal law “require[s] that the district courts enforce

final EEOC decisions favorable to federal employees when

requested to do so.” See Pecker, 801 F.2d at 711 n.3

(emphasis added). Also, in Pecker, “[l]iability was not

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Although it does not lead us to a different result, this

case presents one small complication not addressed by the

other courts of appeals. Morris argues that because the

liability ruling and the compensatory damages ruling in his

case were made in two separate decisions, he is entitled to

enforce the liability ruling while challenging the

compensatory damages ruling. All of the decisions discussed

above that reject “limited de novo” trials are logically

incompatible with this position, since they propose judicial

contested in the district court,” id. at 710, which may help

explain the court’s reluctance to allow the government to

contest liability on appeal.

Another Fourth Circuit panel followed Pecker’s lead in

Morris v. Rice, 985 F.2d 143 (4th Cir. 1993). Morris

expressly found, citing Haskins and Moore, that “the plaintiff

may limit and tailor his request for de novo review, raising

questions about the remedy without exposing himself to a de

novo review of a finding of discrimination.” Id. at 145.

However, neither Haskins nor Moore supports such a broad

right.

Similarly, in dictum, the Ninth Circuit has cited

Haskins and other cases as allowing partial de novo review,

with apparent approval. Girard v. Rubin, 62 F.3d 1244, 1247

(9th Cir. 1995). However, Girard offers no analysis, and

appears to be in some tension with other Ninth Circuit

precedent. See Plummer v. Western Int’l Hotels Co., Inc., 656

F.2d 502 (9th Cir. 1981) (holding that in a private employee’s

Title VII action, administrative findings were not binding in a

trial de novo); cf. Williams v. Herman, 129 F. Supp. 2d 1281,

1284 (E.D. Cal. 2001).

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review entirely independent of the administrative proceedings.

However, one district court case, John v. Potter, 299 F. Supp.

2d 125 (E.D.N.Y. 2004), is of particular interest in light of

Morris’s argument. John applied the Timmons approach to a

situation that, like this one, clearly involved separate

administrative decisions addressing liability and damages.12

Because, under 42 U.S.C. § 2000e-16(c), a federal court must

conduct a de novo trial of a plaintiff’s claims – rather than an

appellate review of a particular administrative result – we,

like the John court, find it immaterial whether any prior

administrative proceedings resulted in multiple decisions, or

only one.

IV.

We hold that, when a federal employee comes to court

to challenge, in whole or in part, the administrative

disposition of his or her discrimination claims, the court must

consider those claims de novo, and is not bound by the results

of the administrative process, whether that process culminated

in one administrative decision, or in two or more decisions.

Therefore, we will reverse the District Court’s grant of partial

summary judgment, and remand the case for further

12

Of course, even where the published decisions do not

make it crystal clear, other cases may also have involved

multiple decisions, given the back-and-forth between agencies

inherent in the Rehabilitation Act administrative process. See

Ritchie v. Henderson, 161 F. Supp. 2d 437, 441-42 (E.D. Pa.

2001) (outlining administrative process involving several

rounds of rulings).

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proceedings consistent with this opinion.

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