Petition — Hall v. California

7 ’

? Supreme Court, U. &

ee re |

#

APR 15 1980

IN THE

{mice LL RUDAK, JR, CLERR

SUPREME COURT OF THE UNITED STATES ~~ ~~

October Term, 1979

Noy = 1618

GROVER C. HALL,

Appellant

vs.

THE STATE OF CALIFORNIA,

ROBERT A. MOODY, ALBERT RAY

BARBARA ROSEN, DARRYL BRAY,

RICHARD L. CAMILLI, EMPLOYEES

OF THE STATE OF CALIFORNIA,

Appellees.

APPEAL TO THE UNITED STATES SUPREME COURT

FROM THE DECISION OF

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GROVER C. HALL

In Propria Persona

1059 South Manhattan Place

Los Angeles, California 90019

Telephone: (213) 737-2603

gemeae a ahiee

TABLE OF CONTENTS

Authorities Cited

Constitutional and Statutory

Provisions Involved

Opinions Below

Jurisdiction

Questions Presented for Review

Statement of Case

Points:

I. The "Right to Sue"

II. The Due Process Clause

III. . Discrimination

IV. The Equal Protection

Clause

V. Cruel and Unusual

Punishment

Conclusion

11-14

14-15

15,16

a6,. 17

Appendix

Appendix

Appendix

Appendix

D

iJ

APPENDIX

Page

Memeorandum

Memorandum

Memorandum

Memorandum

AUTHORITIES CITED

Cases

Glicker v. Mich. Liquor Control

Comm., 100 F.2d at 96 (1947).

McWilliams v. Gladden, 407 P.2d

at 833, 242 GF 333 +1965}.

Neely v. Cal. St. Personnel Bd.,

257 S.A.2d at 487, 47 Cal.Rptr.

(1965).

Sessions v. St. of Conn., D.

Comm., 293 F.Supp. 835, aff'

404 F.2d at 342 (1968).

Cs

d.

Wilson v. City of Los Angeles,

Cal. 351 24 762, CAl. epee.

499 (19609).

iii

6: Hines v. Winfree, A.2d 678, 408,

Pa. 128 (1962).

Statutes and Regulations

Amendments 8, 13, 14 to the United States

Constitution

The Equal Employment Opportunity Act of

1972: §§ 70l(a); 703(a)(1)&(2); and

706(£)(1).

Cal. St. Personnel Bd. Laws & Rules

Governing Civil Service (1970).

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1979

No.

GROVER C. HALL,

Appellant

vs.

THE STATE OF CALIFORNIA, et al.,

Appellees.

APPEAL TO THE UNITED STATES SUPREME COURT

FROM THE DECISION OF

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TO THE CHIEF JUSTICE AND THE ASSOCIATE

JUSTICES OF THE UNITED STATES SUPREME COURT:

Your Appellant, GROVER C. HALL,

hereby appeals for a complete review of this

sase. And in the interest of justice assume

jurisdiction. And render your decision.

This case has been under litigation since

March, 1973. Unusual action in the Federal

Courts in California makes it questionable

whether justice can be rendered in California.

OPINIONS BELOW

The memorandum decision of the

Court of Appeals has been published and

dated February 6, 1980. It is appended

hereto as Appendix A. The memorandum

decision of U.S.D.C. in Hall, I II is

appended as Appendix C. The memorandum

decision of U.S.D.C. in Hall, I is appended

as Appendix E. The memorandum decision of

U.S.C.A. 1s appended as Appendix D.

JURISDICTION

The judgment of the Court of

Appeals from which appeal is made for review

was published and dated February 6, 1980. I

received my copy of that decision on Feb-

ruary 23, 1980 which was too late to petition

for a rehearing. The statutory provision

believed to confer jurisdiction on this Court

to review the judgment in question is 28 USC

§ 1254.

QUESTIONS }RESENTED FOR REVIEW

Does the filing of a complaint

in the United States District Court under the

Equal Employment Opportunity Act of 1972

without first obtaining the "Right-To-Sue"

from the proper source, according to Section

706(f£)(1) of the E.E.0.C. Act of 1972 con-

stitute improper procedure? If so, then does

such improper procedure render any and all

action on that complaint null and void?

2. Does the practice of firing

an employee; later sending to that employee

a list of charges as reasons why he was

fired; then, offer to him an opportunity to

appeal for an Administrative Hearing satisfy

the meaning and spirit of the Due Process

Clause of the 14th Amendment of the United

States Constitution?

.. Three men, two black and one

white, employed by the same agency are

similarly situated in that they are accused

of violating the same civil service regu-

lation. The two black men are fired from

their jobs. The White man is not fired. Is

this discrimination sufficient to warrant

Federal Court jurisdiction under the E.E.oO.

Act of 1972?

STATEMENT OF THE CASE

On December 13, 1972 at or about

8:00 a.m., I went to my office to work as a

Disability Determination Counselor with the

Disability Determination Program, a Cali-

fornia State Agency. Upon arriving at my

office a clerk informed me that Mr. Albert

Ray, the Administrator wanted to see me. I

went immediately to Mr. Ray's office. There

Mr. Ray told me that he was placing me on

Administrative leave until further notice.

And that I was to go home. And that I would

be contacted later. I called a lawyer. He

advised me to do what they say and not to

anger them by further inquiry. It is clear

they do not wish to tell you now... this

was after I asked why?

I went home. About 9:30 a.m.

Mr. Robert A. Moody, Program Director,

called me. He told me that I was fired.

I asked, for what? He told me I would re-

ceive written notices in a few days. Two

weeks later on December 26, 1972, I received

a document called "Notice of Punitive Action".

I secured a lawyer who appealed for an

Administrative Hearing which was held March

8-26, 1973. This is a fact finding hearing.

The Hearing Officer presented his findings

to the California State Personnel Board, who

in turn adopted them. I personally appealed

to the California State Personnel Board for

reconsideration. They denied it.

I hired another lawyer who peti-

tioned the Los Angeles Superior Court for a

Writ of Mandate. He based his petition on

the insufficiency of evidence, numerous

errors, and abuse of discretion. This was

denied. I had no more money. I represented

myself in an appeal to both the California

State Court of Appeals and the Calfornia

Supreme Court. The final denial by the Cali-

fornia Supreme Court was September 17, 1975.

While my case was under consider-

ation by the California Court of Appeals, I

filed a charge of discrimination with the

Equal Employment Opportunity Commission on

or about February 15, 1974. The E.E.0O. Com-

mission assumed jurisdiction on May 12, 1974.

On September 25, 1975, I filed a

Complaint under the E.E.0O. Act of 1972 in

the United States District Court for the

Central District of California. I ignorantly

failed to apply to the United States

Attorney-General's Office for the document

called the "Right to Sue", in accordance

with Section 706(f)(1) of the E.E.0O. Act of

1972. The United States District Judge,

Irving Hill, apparently treated this pro-

cedural error as a harmless error. He set

a trial date, which was held on November 20,

1975. I learned sometime later that failure

to follow the requirements of a Congressional

Law cannot be treated as a harmless error.

The Judge dismissed my case with prejudice.

I appealed to the U.S.C.A. whe affirmed the

U.S.D.C. decision. On reflection later, I

felt that the U.S.D.C. Judge should have

dismissed the case without prejudice on

procedural grounds. I secured the "Right to

Sue" and refiled my complaint in the U.S.D.C.

It was dismissed with prejudice on the

grounds that I had had my day in court.

Again I appealed and am appealing to this

Court from that decision.

POINT I

The Right To Sue, Congressional

Law - E.E.0O. Act of 1972, Section 706(f)(1).

The "Right to Sue" as required by this

section was not obtained by me from the U.S.

Attorney-General's Office when I filed case

known as Hall (75-3314-IH) in the U.S.D.C.

for the Central District of California.

This was an error of ignorance on my part.

For this reason I contend that this case was

not properly before the U.S.D.C. This was a

procedural error. When the case was assigned

to U.S. District Judge Irvine Hill, he was

aware of this. At that time he did not know 4

rendered null and void.

me nor had he seen me. Likewise, I did not

On the other hand, the case known

know him. He apparently treated this case : E

as Hall (77-2911-AH), which was filed on

as a harmless error and set a trial date. ,

August 4, 1977 in the same Court, U.S.D.C.

This was a mistake because failure to follow . :

did have as a part of its record the "Right

the requirements of a Congressional Law can- :

q g to Sue" issued by the U.S. Attorney General's

not be treated as a harmless error. The ’

Office on July 22, 1977. I contend that

U.S.D.C. had every resource at’ its command

this case (Hall [77-2911-AH]) was properly

to determine whether the U.S. Attorney before the Court. And as such the U.S.D.Cc

. as suc e U.S.D.C.

General's Office had issued to me a "Right ; ae ; :

3 did have jurisdiction. And the Appellant

to Sue". In addition, this was neglect on :

3 had not had his day in court. Because of

the part of the U.S.D.C. The Court should :

Judge Hill's error in 1975, the Federal

have checked this at the time of filing as See

Courts in California have kept my case from

it does so many other things. Under the ;

coming to trial.

circumstances, I cannot see how this Appel- an

In my opinion, the error of Judge

lant ld have possibly mislead the Court. ‘

ne ee ° ee Y Hill was a deliberate and calculated error

The error was made before a trial date was .

designed to so obstruct the movement of my

set. ,

case in Federal Court that I would never re-

I further contend that since : .

celve justice.

this case was not properly before the

U.S.D.C. for procedural reasons, any and

all action taken in this case is therefore

10

POINT II

The Due Process Clause of the 14th

Amendment to the United States Constitution.

The State of California fired me

from my job as a Civil employee on December

13, 1972. I was notified of the reasons why

on December 26, 1972. In addition I was

given an opportunity to appeal for an Admin-

istrative Hearing. During a period of about

two weeks I never knew why I was fired. I

learned on December 26, 1972 that at or about

6:50 a.m. on December 13, 1972 I had

threatened to kill my supervisor. I contend

that some form of Due Process should have

been exercised before I was fired on Decem-

ber 13, 1972. I1 further contend that I was

fired on the accusation of a white woman.

I was adjudged guilty after I was fired. I

also contend that this casts suspicion and

doubt on the firing.

11

POINT III

Discrimination, Congressional Law

E.E.O. Act of 1972, Sections 703(a)(1)&(2).

The U.S.C.A. stated that I was

fired for incompetence and insubordination.

This was a finding of the Administrative

Hearing after the fact. I contend that on

December 13, 1972 I was accused of threaten-

ing to kill the Supervisor which is in

violation of 19572 (m&t) of California State

Civil Service Rules and Regulations. The

charge of incompetence and all other charges

were made two weeks later on December 26,

1972 . . . that violation is called mis-

treatment of a fellow employee or a member

of the public, and off-duty shameful

conduct.

On July 17, 1974, a white male

employee for the same agency attacked a

black woman with a knife. She was hospi-

talized for several months. (See L.A.S.C.

Case No. C-121 907). He was and is not

12

fired. The employee is Michael Greewald.

In April, 1977, Gus Dixon, a black

male clerk was accused by a white woman of

threatening to kill her. (California State

Personnel Board No. 8838). Mr. Dixon was

fired.

It is to be noted that each of the

two black men’ were accused of verbal threats.

The white man was accused of an attack which

is more aggravated. In the case of the two

black men there is va evidence that they

attempted not intended to carry out such

threats.

I contend that this is discrimin-

ation based on race. And as such, the Federal

Courts have jurisdiction under the E.E.0O. Act

of 1972.

On December 4, 1972, I was recom-

mended by both the Supervisor and the

Administrator for passing the probationary

period of the promotional position as

counselor. In addition, I was recommended

13

by the same people for a merit increase in

salary. Then, on December 12, 1972, the

same two people tried to get me to sign a

sub-standard performance report. I raised

the question: How can my work be commend-

able on December 4, 1972 and be sub-standard

on December 12, 1972? I refused to sign it.

Because this was a deliberate attempt to

limit and circumscribe any further promo-

tional opportunities to which I might

aspire. This sub-standard performance

report would be a mark against the quality

of my work. This damaging bit of evidence

could be presented to any review panel con-

sidering my application for a promotional

position. This could be done by the Super-

visor and Administrator per a secret up-to-

date progress report. This could be done

without the concerned employee's knowledge

nor consent. The infamous Rule No. 200 in

California State Civil Service makes that

possible.

14

It 1S my opinion that my refusal

to sign that sub-standard performance report

so angered all concerned that they decided

to frame me the next day (December 13, 1972)

and accused me of threatening to kill the

Supervisor.

POINT IV

The Equal Protection Clause of

the 14th Amendment.

On November 29, 1972, I borrowed

a memo from Barbara Rosen, the Supervisor,

to make a photocopy for my file. Before

10:30 a.m. the same morning, the Supervisor

accused me of refusing to return the memo.

I simply stated to her that I was very busy

and would get it done as soon as possible

and at least during the noon hour. For this

I was penalized two and one-half days with-

out pay.

I contend that this was no insub-

ordination within the meaning of the law.

See Neely v. Cal. St. Personnel Bd., P.237

15

Cal.App.2d 87, 47 Cal.Rptr. 63, 68 (1965).

The Court ruled: "The term insubordination

as used in said sub-division (e) has been

broadly defined as follows: ‘'. . . insub-

ordination implies a general course of

mutinous disrespectful or contumacious

conduct. . ..'" Also, the courts have

ruled that a charge of insubordination

supported by a single incident is not

supported by substantial evidence.

I contend that if this is the law

as interpreted by the courts, I was not

given equal protection under the law when

I was penalized two and one-half days with-

out pay. In addition, it was petty.

POINT V

Cruel and Unusual Punishment, The

8th Amendment.

To fire me from my job without

even a semblance of due process is cruel

and unusual punishment. It is deprivation

of my constitutional rights. For this is

16

the State of California and its agents can

be sued under the E.E.0O. Act of 1972. It

is my opinion that the State of California

through its duly appointed agents did con-

spire and collude with the United States

District Judge to obstruct the movement of

my case in the Federal Courts so that it

would be impossible for me to ever receive

justice. Even the United States Court of

Appeal got into the act by affirming a case

which was never properly before the United

States District Court (Hall [75-3314-IH]).

This is cruel and unusual punishment of a

most vicious kind (See E.E.0O. Act of 1972 -

Section 70l(a)).

CONCLUSION

This Court should assume juris-

diction in this case. The Federal Courts in

the State of California have not only acted

less than honcrably; but, by ruse and guile

kept this case from coming to trial

for several years. In addition, it 1s

17

impossible for me to receive justice in the

Federal Courts in California. The Court of

Appeal is in a rather embarrassing position

of having affirmed the decision of the

United States District Court.

THEREFORE, IT IS RESPECTFULLY

REQUESTED that this Court will assume juris-

diction; and in the interest of 7 "stice

render its decision; and assess damages.

And for mercy sake, end this ordeal for

this Appellant.

Respectfully submitted,

SD psn © , /pehh

GROVER C. HALL

In Propria Persona

1059 So. Manhattan Place

Los Angeles, CA 90019

Tel: (213) 737-2603

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

IN THE MATTER OF:

GROVER HALL, ) _ ee Bayo a

Appellant )

) NOTICE OF APPEAL: TO THE

) SUPREME COURT FROM THE

VS ) DECISION OF THE USCA.

)

) Code: 28 USC SEC. 1254

)

THE STATE OF CALIFORNIA, ) JURISDICTIONAL STATEMENT

Robert A. Moody, Albert Ray, )

Barbara Rosen, Darryl Bray, )

Richard L Camilli, Employees )

of the St. of California. )

Appellees )

)

CERTIFICATE OF SERVICE

This is to certify that the undersigned caused the foregoing

document to be duly served by mailing a copy or copies of the same in

the United States mail with postage prepaid on Ape me e (2 » 1980

addressed to the following:

Hon. George Deukmejian, Atty-Gen. Mr. Emil E. Malfi, Jr., Clerk

Calif. St. Dept. of Justice U.S. Court of Appeals

800 Tishman Bldg. For the Ninth Circuit

3580 Wilshire Blvd. P.O. Box 547

Los Angeles, Calif. 90010 San Francisco, California 94101

Mr. E.M. Kritzman, Clerk U.S. Department of Justice

U.S. Dist. Court, Civil Rights Section-Employment

Central Dist. of Calif. Washington, D.C. %0530

Federal Courthouse

312 N. Spring St. The Solicitor General

Los Angeles, Calif. 90012 Washington, D.C.

DATED K-(2- YC : Signed: Ey ppp teres Ark ,

Grover C. Hall, Pro Per.

1059 S. Manhattan Pl.

Los Angeles, Calif. 90019

APPENDICES

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Grover C. HALL,

Plaintiff-Appellant, No. 78-1039

vs.

THe STATE OF CALIFORNIA, Robert A. Moody, EMORANDUM

Albert Ray, Barbara Rosen, Darryl Bray,

Richard L. Camilli, Employees of the State of

California,

Defendants-Appellees.

[February 6, 1980]

Appeal from the United States District Court

for the Central District of California

Before: CHOY and ANDERSON, Circuit Judges, and SMITH,*

District Judge.

Appellant Hall, an employee of the State of California, was

discharged in December 1972 for alleged incompetence and insubor-

dination. He took an appeal to the California State Personnel Board.

A hearing officer in a proposed decision found that there was no

evidence to support Hall's charges of racial discrimination and found

affirmatively that Hall was both insubordinate and ent.

These findings were adopted by the State Pe rd. A

California Superior Court, on an application for a writ of mandate,

refused relief ‘and was affirmed by the California Court of Appeals.

The California Supreme Court denied a hearing. Hall then filed an

action under 42 U.S.C. §2000e-5(f(1) (Hall v. California State

Personnel Board, No. CV 75-3314-IH (C.D.Cal., Nov. 21, 1975)) (Hall

~ *The Honorable Russell E. Smith, Senior United States District Judge | for

the District of Montana, sitting by designation.

IN

¢

Hall vs. State of California 3

The Court, in Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381.

2 Hall vs. State of California 402-03 (1940), said:

No. 1), naming as defendants the California State Personnel Board Where the issues in separate suits are the same, the fact that the

and the members of such Board. Judgment was entered for the parties are not precisely identical is not necessarily fatal. As

defendants, and that judgment was affirmed on appeal. Hall vy. stated in Chicago, R. I. & P. Ry. Co. v. Schendel, 270 U.S. 611.

- California State Personnel Board, No. 76-1162 (9th Cir.. April 28, 620, “Identity of parties is not a mere matter of form, but of

1977). substance. Parties nominally the same may be, in legal effect,

different, ... and parties nominally different may be, in legal

In August 1977 Hall filed this action in the District Court for the effect, the same.” A judgment is res judicata in a second action

Central District of California. It contains a potpourri of charges, but , upon the same claim between the same parties or those in privity

the jurisdiction of this court is dependent on the assertion that Hall with them. Cromwell v. County of Sac, 94 U.S. 351. There is

was fired because he is a Negro rather than because of his privity between officers of the same government so that a

incompetence and insubordination. The district court dismissed this / judgment in a suit between a party and a representative of the

SCOR On the GROUES Ct See NS: fee United States is res judicata in relitigation of the same issue

Any possible claim under any federal law must in this case rest on between that party and another officer of the government. See

the fact of racial discrimination. The California State Personnel Board Tait v. Western Maryland Ry. Co., 289 U.S. 620. The crucial

specifically found that Hall was fired for insubordination and | point is whether or not in the — litigation re ego

<. incompetence nd also that his charges of racia) discrimination were of the United States had authority to represent its interests |

“not valid. The district court in Hall No. J said: “Whether the action is final adjudication of the issue in controversy.

viewed as one under Title VII or under § 1983. the action is barred

See also Mervin vy. FTC, 591 F.2d 821 (D.C. Cir. 1978).

under principles of res judicata and collateral estoppel.” The Court of

It would be reached by applying the doctrine of

Appeals affirmed. In Hall No. | the court did not make a finding on The same resu . fuel

iscriminati 1. Under that doctrine, mutuality is not required.

the merits of the discrimination claim,_but it did determine that the collateral estoppe ;

.decision of the State personnel board was final and conclusive so far Clark v. Watchie, 513 F.2d 994 (9th Cir. 1975). A nonparty may a

as Hall jail was concerned. It also_held_that thé ~State administrative _ a collateral estoppel if the issue has been actually and necessarily

Proceedings were not lacking in due process. Bayer determined against the same adverse party in a prior suit. See

Montana \. United States, 440 U.S. 147 (1979). Here Hail No. | did

It is unnecessary here to get into the question of the extent to which determine that the action of the State personnel board was conclusive.

State action may be conclusive as to federal civil rights claims. The , . « redinti

t jurisdiction

decision in Hall No. |, affirmed on appeal, said that the State action (™ Pi gage peony Pas dh gt ace Gaeaue ee ma

_was conclusive. Hall No. / is now final and that ends it. unless the nerantineeee” id:

change in parties makes the claims of res judicata and collateral Gistrict court in Hall No. 1 sate:

estoppel unavailable or unless the decision in Hall No. 1] is a ‘nullit lity Plaintiff stated in open court that the only basis for federal

because the court lacked jurisdiction.

juriadic | jurisdiction which he asserts herein is Title VII of the 1964 Civil “57° oT,

As to the change in parties: In Hall No. | the California State Rights Act as amended in Public Law 92-261. eae i vs //-Z4.

Personnel Board and the members of such Board were parties. In this VII applicable to states and their agencies . ap "4 >

case the State of California and six named employees of the State are 5 holsgel gl Mea aor Rahs e e b deg ehh de ee Wey

defendants. In this case and in Hall No. / it was the action of the State

. . Plaintiff states that he presented his csieabiiih of racial

discrimination to the EEOC in 1973 and was advised by that

agency. also in 1973, of its declination of the case_for_agency ._

ne |

of California accomplished through its agents which was in issue.

Notwithstanding the juggling of parties. behind it all is the State of

California and its agents who are alleged to have brought about the

discnminatory act. Under these circumstances there is a requisite

identity of parties.

4 Hall vs. State of California

_ Prosecution and of his right to commence an individual action in

federal c court if he so chose. _ ap al

The court’s finding of jurisdiction was unchallenged until this action

was filed. The court had jurisdiction to determine its jurisdiction, and

that determination is binding on Hall. In United States y. United Mine

Workers, 330 U.S. 258, 292-93 n. 57 (1947), the Court, quoting from

Carter v. United States, 135 F.2d 858, 861 (Sth Cir. 1943), said:

“It cannot now be broadly asserted that a judgment is always a

nuliity if jurisdiction of some sort or other is wanting. It is now

held that, except in case of plain usurpation, a court has

jurisdiction to determine its own jurisdiction, and if it be

contested and on due hearing it is upheld, the decision

unreversed binds the parties as a thing adjudged . .. . So in the

matter of federal jurisdiction, which is often a close question, the

federal court may either have to determine the facts, as in

contested citizenship, or the law, as whether the case alleged

arises under a law of the United States.”

Had the mistake (assuming one) been brought about by the misrepre-

sentation of the adverse party, equity might grant relief, but certainly

there js no relief available to one- who, by his own positive

representations, causes the court to err. re ey

eae OO ee act eee aOR

The judgment is affirmed.

RECORDER-SUNSET PRESS, SAN FRANCISCO, CA -2-18-8O--. 475

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GROVER C. BALL,

Plaintiff-Appellant, No. 76-1162

pn

CALIFORNIA STATE PERSONNEL

BOARD, and Members of such

' MEMORANDUM

Board, Perr eT =

Defendants-Appellees.

ee ee ee et ee ee ee ee ee ee

‘

Appeal from the United States District Court

for the Central District of California

Before: DUNIWAY, CHOY and WALLACE,

Circuit Judges

Hall appeals from the dismissal with prejudice of

his Title VII action. We affirm.

Hall alleged that he was dismissed from his employ-

ment as a Disability Determination Counselor in the California

Department of Rehabilitation because cf his race. He bases

the allegation upon the fact that he, a Black, was dismissed

for insubordination while in an earlier and unrelated incident;

a Caucasian was not dismissed for more aggravated behavior.

The Notice of Punitive Action issued to Hall by the department

charged that he threatened to kill one of his supervisors and

géetorned substandard work in several particulars. We cannot

and do not reach the merits of these contentions because the

district court correctly dismissed the action on procedural

grounds.

. The order of the district court recites that Hall

Stated he received a "“right-to-sue” letter from the EEOC in

1973. + Since this suit was not filed until 1975, the action

was untimely under 42 U.S.C. § 2000e-5(f) (1). Under that

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section, it is a prerequisite to district court jurisdiction

that judicial proceedings be commenced within 90 days from the

receipt of the EEOC notice. Hall does not appear to challenge

the assertion that he made the statement in open court. More-

over, he could not, for he has not provided a transcript of

the proceedings before the district court as part of the

record on appeal. In re Chapman Coal Co., 196 F.2d 779, 785

(7th Cir. 1952); accord, Herron v. Rozelle, 480 F.2d 282

(10th Cir. 1973); Bernards v. Johnson, 103 F.2d 567 (9th Cir.

aff'd on other grounds, U.S. 19 (1941).

1939) ,/ Hali's argument that his action was timely filed

under 42 U.S.C. § 2000e-5(e) is unsound. That section governs

the filing of complaints before the EEOC, not the filing of

actions in the district courts.

As to constitutional claims, the district court,

sua sponte, considered whether it could have jurisdiction

over this cause of action, properly amended, under 42 U.S.C.

§ 1933 and 28 U.S.C. § 1343(3). The court determined that

it could not because Hall had not named “persons” as de-

fendants and because principles of res judicata would bar

the action in any event since Hall had unsuccessfully pre-

sented this precise grievance in the state courts. This de-

termination was not error. Sykes v. State of California

(Department of Motor Vehicles), 497 F.2d 197 (9th Cir. 1974);

Francisco Enterprises, Inc. v. Kirby, 482 F.2d 48l, 485

(9th Cir. 1973); Clark v. State of Washington, 366 F.2d 678,

681 (9th Cir. 1966). In addition, the members of the Per-

sonnel Board were clearly acting in their discretionary or

quasi-judicial official capacities when they performed the

acts to which Hall seeks to attach liability. They were

therefore immune to suit under section 1933. Sykes v. State

of California, supra, 497 F.2d 197.

AFFIRMED.

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CALIFORNIA STATE

PERSONNEL BOARD, anda

Members of Such Board,

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Pursuant to the Orcer Dismissing Action With

Prejudice filed contemporanecuslv rerewith, IT IS ORDERED

AS FOLLOWS

l. Defendants shall have judgment against Pléin-

1973.

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IRVING HILL, Judge

United States District Court

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* CLETA, US. DISTRICT COURT

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GROVER C. HALL, NO. CV 75-3314-LH

ORDER DISMISSING

Plaintiff, ACTIOW WITH PRESUDICZ

v.

CALIFORNIA STATE

PERSONNEL BOARD, and

Members of Such Board,

Defenacants.

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The within action filed by Plaintiff appearing

in pro per came before the Court on November 20, 1975, for

the hearing of the motion of Defendants filed October

17, 1975, to dismiss the action. The dismissal motion

specifies two grounds, i.e., failure to state a claim and

lack of subject matter jurisdiction. In considering the

motion, the Court notes that Plaintiff filed on October

31, 1975, what he denominates a "Bill of Particulars". The

Court notes also that in said document, it is referred to as

an amendment to the complaint. As the Court announced in

open court, the Court considers said document as an

amendment to the complaint. Appearances were: Plaintiff

appearing in pro per and Evelle J. Younger, Attorney Seneral

of the State of California, by Marilyn Maver Moffett,

Deputy Attorney General. The Court heard argument and has

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: : , ’ 1 claim thereunder.

considered the said motion together with the various ee

2 documents filed in support thereof and in opposition 2 ! (c) If the action is considered as one under

3 | thereto. Among said documents were various documents 3 H Title VII and Public Law 92-261, the statute of limitations

4 | relating to a state court proceeding entitled Hall v. : provided therein has admittedly expired and this Court

5 | State Personnel Board of the State of California and . lacks jurisdiction. Plaintiff states that he presented

6 | Members of such Board, case No. C 66920 in the Superior : | his complaint of racial discrimination to the EEOC in

7 | Court of Los Angeles County, the administrative decision 7 1973 and was advised by that agency, also in 1973, of its

8 challenged therein as evidenced by a proposed decision of 8 declination of the case for agency prosecution and of his

9 | B. J. Showers, Hearing Officer, State Personnel Board, 9 | right to commence an individual action in federal court

10 dated April 6, 1973, and a decision of the Board itself 10 if he so chose. Under the provisions of 42 U.S.C.

ul dated April 12, 1973, adopting said proposed decision, it | §2000e-5(£)(1), Plaintiff's right to file a federal court

12 i the opinion of the Court of Appeals affirming the trial ” . action expired within 90 days after receipt of such

eS | court's denial of relief to Plaintiff in said Superior . advice in the year 1973.

si Court proceeding, said opinion being one filed July . | (d) Whether the action is viewed as one under

- 24, i975, and unpublished, and’a postcard decision of the 1S | Fitle VII or wder §1983, the action is barred under princi-

16 California Supreme Court denying hearing in said state - | ples of res judicata and collateral estoppel. The Spat

is | proceeding. si | court documents which are referred to above and which are

” | It appears to the Court as follows: 7 is before the Court, demonstrate that Plaintiff has made, in

= (a) Plaintiff stated in open court that the only ” | the state proceeding, factual contentions identical with

- | basis for federal jurisdiction which he asserts herein 0 , those he makes here including contentions of racial

a1 | is Title VII of the 1964 Civil Rights Act as amended = | discrimination. He has had his day in court and those

= in Public Law 92-261, making said Title VII applicable to } 2 contentions have been resolved against him and have been

ed states and their agencies. As stated, infra, no claim is : as | found to be groundless.

a | stated under said statute by the amended complaint, nor can as | (e) If viewed as an action under §1983, the

” | any further amendment succeed in asserting a valid claim | f sas / complaint must be dismissed for failure to state a clain.

- | thereunder. The Court, therefore, lacks subject asetun | ” Plaintiff has not named any "person" within the meaning of

” | jurisdiction under said statute. - said erenure The state and its subdivisions and agencies

38 (b) The Court has considered the possibility = | are not "persons" within the meaning of the statute and,

29 | »that jurisdiction in this Court may also exist under = therefore, are not proper Defendants thereunder. The

- | 42 U.S.C.§1983. As will be seen, infra, no claim is 7 ! Defendant Board is an agency of the state. Under the said

31 | stated under said statute and the Defendants are entitled . statutes, persons may not be sued by description of the

= | to a dismissal of the action if viewed as one asserting a 7 | office they hold but must be individually named. No

moma, | _——

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individually named Defendant is sued herein. DATED: wovesber 2.|

_—_

—

, 1975.

Moreover, none of the contentions which are 2

the gravamen of the complaint states any deprivation of | | 3 |

federal constitutional vights. This is true with respect to 4 ! /

the allegations of Plaintiff that Defendants have failed |) 5 : eT an, Me

to observe <he rules of procedure established by the ; 6 IRVING HILL, Judge

Uniced States District Court

state and reflected in the Defendants’ Administrative ~

Manual, thac he was not informed of the charges against 8

him before his dismissal and did not have an opportunity 9 ;

to answer co: refuse to answer those charges (in this ) 10

connection, the entire state file conclusively demonstrates : | 11

that Plaintiff was in*ormed of the charges and had the 12

fullest opportimity *o answer and litigate concerning | 13

them), that the investigation of his claim was not 14

impartial and was wfair, that some other employee was not 15 |

dismissed for conduct equally discourteous to tnat | 16 |

charged against him, that there was "administrative error" 17 |

in finding him to be insubordinate, that the Hearing : 18

Officer incorrectly interpreted the meaning of the 19 |

word "insubordination", that the Administrative Hearing } , 20 |

Board failed to observe its own rules and policies, and that t 21 |

another employee who drew a loaded revolver and was more : | 22

insubordinate than Plaintiff was not dismissed. | 23 r

FOR THE REASONS STATED ABOVE, IT IS ORDERED | | 24

AS FOLLOWS: 3 25 |

1. Defendants' motion is granted. Plaintiff 26 |

shall take nothing by his action. The action is dismissed | 27 |

with prejudice. Defendants shall have judgment against | 28 |

Plaintiff with costs of $ | 29 :

2. The Clerk shall transmit a copy of this Order | 30

and of the Judgment filed contemporaneously herewith by | 31

United States mail to counsel for the parties herein. 32

a | _— .

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