Petition for Writ of Certiorari — Stevens v. Department of Treasury

WY 18 80

JOSEPH F. SPANIOL, JR.

~ RK

In the

Supreme Court of the United States

OCTOBER TERM, 1989

CHARLES Z. STEVENS, III

Petitioner

VS.

UNITED STATES DEPARTMENT

OF THE TREASURY;

NICHOLAS F. BRADY, Secretary,

U. S. DEPARTMENT OF THE TREASURY

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Alison Steiner, Esq.

ADELMAN & STEINER, P.A.

P. O. Box 368

224 Second Avenue

Hattiesburg, MS 39401

601/544-8291

(Counsel of Record)

Darwin McKee, Esq.

600 West 8th Street, Suite 100

Austin, TX 78701

512/477-0925

COUNSEL FOR PETITIONER,

CHARLES Z. STEVENS, III

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

QUESTIONS PRESENTED

1. DID THE COURT OF APPEALS VIOLATE

THE UNAMBIGUOUS LANGUAGE OF THE ADEA

AND/OR CONTROLLING PRECEDENT OF THIS

COURT IN DECIDING THAT A_ FEDERAL

EMPLOYEE’S TIMELY FILING UNDER 29 U.S.C. §

633a(d) OF A NOTICE OF INTENT TO FILE CIVIL AC-

TION WAS RENDERED “INEFFECTIVE” AS A

PREDICATE FOR ADEA CIVIL ACTION BECAUSE

THE CIVIL ACTION WAS INSTITUTEFD MORE

THAN THIRTY DAYS AFTER THE NOTICE?

2. DID THE COURT OF APPEALS ADOPT THE

ELECTION/EXHAUSTON OF ADMINISTRATIVE

REMEDIES REQUIREMENT OF CASTRO V. U.S., 775

F.2d 399 (1st Cir. 1985) AND PURTILL V. HARRIS, 658

F.2d 134 (3rd Cir. 1981), AND THUS CREATE A CON-

FLICT WITH THE DECISION IN LANGFORD V. U.S.

ARMY CORPS OF ENGINEERS, 839 F.2d 1192 (6th Cir.

1985), WHEN IT HELD THAT THE UNTIMELY FIL-

ING OF A FEDERAL EMPLOYEE’S INTERNAL

AGENCY ADEA COMPLAINT TIME BARRED HIS

ADEA CIVIL ACTION, EVEN THOUGH THE

EMPLOYEE HAD ALSO TIMELY FILED A NOTICE

OF INTENT TO FILE SUIT PURSUANT TO 29 U.S.C.

§ 633a(d) NOT LESS THAN THIRTY DAYS PRIOR TO

INSTITUTING HIS CIVIL ACTION?

.

RULE 28.1 STATEMENT

Parties to this case are:

Charles Z. Stevens, III, Petitioner

United States Department of the Treasury, Respondent

James A. Baker, III, former Secretary of the Treasury,

Defendant/Appellee below

Nicholas F. Brady, Secretary of the Treasury (successor to

James A. Baker, III as Secretary of the Treasury),

Respondent

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................... i

RULE 28:1 STATEMENT......................... ii

TABLE OF CONTENTS ......................... iii

TABLE OF AUTHORITIES ...................... iv

OPINIONS BELOW.............................. l

Teen Tn ne tcc wcnccces 2

EEE SS 2

STATEMENT OF THE CASE ..................... 2

REASONS FOR GRANTING THE WRIT:

I. The Court Of Appeals Holding That The Peti-

tioner’s Suit Was Filed Too Long After The Fil-

ing Of The Notice Of Intent Is Directly Con-

trary To The Express Language Of The ADEA

And To Established Precedent Of This Court

On Statutory Construction................... 5

Il. The Court Of Appeals, In Conflict With Deci-

sions Of Other Circuits, Erroneously Bound

Petitioner To An Election And Exhauston Of

Remedies Not Required By The Statute ...... 9

IEEE 14

APPENDIX:

EE SI A-l

Appendix B ..... es so vice oe ss se anes A-5

Ng os ccc cases cece ese A-9

iv

TABLE OF AUTHORITIES

CASES Page

American Tobacco Co. v. Patterson, 456 U.S. 63

ee el a acai aeh i hae oes G g

Bob Jones University v. U.S., 461 U.S. 574 (1983) .. .9

Brown v. General Services Admn., 425 U.S. 820

a on eae a ee ee Sea 10

Castro v. U.S., 775 F.2d 399 (1st Cir. 1985)6,11,13

Escondido Water Co. v. La Jolla Band of Mission

Indians, 466 US. 765 reh. den.

Se ee rc cas scuge das tes ee bine 9

Irwin v. V.A., 874 F.2d 1092 (5th Cir. 1989) ......... 13

Jefferson County Pharmaceutical Association v.

Abbot Laboratories, 460 U.S. 150 reh. den.

I Peer Tee er Pere eee 9

Langford v. U.S. Army Corps of Engineers, 839

F.2d 1192 (6th Cir. 1985) .................. 11,12,13

Lehman v. Nakshian, 453 U.S. 156 (1972). ...... 7,8,10

Limongelli v. U.S.P.S., 707 F.2d 368 (9th Cir.

RL ae yr Cr era eae eee ina ek 11

McKinney v. Dole, 765 F.2d 1129 (D.C.

UIE ad ae SGN ein ale ea Pa 6

NLRB v. Amax Coal Co., 453 U.S. 322 reh den.

ed ein c gis eee ee a wa 6s 9

Patterson uv. Weinberger, 644 F.2d 521

rg ee eee as key ae 13

Proud v. U.S., 872 F.2d 1066 (D.C. Cir. 1989) ........ 10

Purtill v. Harris, 658 F.2d 134 (3rd Cir. 1981)

cert filed sub nom Purtill v. Schweiker,

51 U.S.L.W. 3062 (1982), cert den. sub nom

Purtill v. Heekler, 462 U.S. 1131 (1983) ...... 11,13,14

Ray v. Nimmo,-704 F.2d 1480 (11th Cir. 1983) ....10,11

4

v

TABLE OF AUTHORITIES (continued)

Page

Roman v. Shear, 799 F.2d 1416 (9th Cir. 1986),

cert filed 55 U.S.L.W. 3734, cert den.

ee ID oo bv ch wk cle ccccceccekews 11,14

Watt v. Alaska, 451 U.S. 259 (1981)................. )

White v. Franks, 718 F. Supp. 592, 595

I «ce an ee ee 13

Wiersma v. Tennessee Valley Authority, Civil

Action No. 3-85-1160, (Eastern District of

Tennessee, March 12, 1986), 41 BNA FEP CAS

1588, 41 CCH EPD Paragraphs 36518, 36519....... 7

Zipes v. TWA. Inc., 455 U.S. 385 (1982)........... 7,10

Other Authorities:

Statutes:

ID os osc kc uu dos svunweveuecavsen 2

io asso a wo u's -0 0 id 6 cle clone wale 2

en ea eee aes 2

I 2 ss vg 5 eis ss baled Cake 7

ge a bs ka voy eane nawebeueunben 7

Ne os os sa 6 we dee a9 0s a 2-13

SN A ss as clan be aaa eel 7

42 U.S.C. § 2000e-16(c)......................... 10,2

vi

TABLE OF AUTHORITIES (continued)

Page

Regulations:

29 Code of Federal Regulations, Part XIV, Chapter 1613

ES nos os ced dune phaoe neta eeee 3

i ER er eI as ace 2,3,5

I: 3, <5 co ivan necias banter 2,10,12

re 2,3,5,10,11,12

CE os, ss aoe nae av sane eid 2,5,10,12

OIBORS oo. woo cece cece ce cencees 2,5,10,11,12

ne 2,10,11,12

1

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

CHARLES Z. STEVENS, III

PETITIONER

VS.

UNITED STATES DEPARTMENT OF THE

TREASURY, NICHOLAS F. BRADY,

SECRETARY, UNITED STATES

DEPARTMENT OF THE TREASURY

RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Charles Z. Stevens, III, respectfully prays that a

Writ of Certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit in

Charles Z. Stevens, III, v. United States Department of the

Treasury, et al.,No. 89-1432 (February 21, 1990).

OPINIONS BELOW

The opinion of the United States District Court for

the Western District of Texas has not been officially

reported. The Memorandum Opinion and Order filed April

19, 1989 in Civil Action A-88-CA-340 appears as Appendix

A hereto. The opinion of the United States Court of Ap-

peals for the Fifth Circuit is also unreported. The per

curiam panel opinion of February 21, 1990 in Case No.

89-1432, Summary Calendar appears as Appendix B

hereto.

2

JURISDICTION

The judgment of the Court of Appeals was entered

on February 21, 1990. Jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATUTES

The statutory provisions involved in this Petition are

subsections (b), (c) and (d) of § 15 of the Age Discrimination

in Employment Act of 1967, as amended, 29 U.S.C. §

633a(b) (c) (d). The statutory provisions appear as Appen-

dix C hereto. The federal regulations pertinent to this peti-

tion are 29 Code of Federal Regulations, Part XIV, §

1613.214 and §§ 1613. 501-521 (1989). Said regulations ap-

pear as Appendix D hereto.

STATEMENT OF THE CASE

Plaintiff/Petitioner brought this civil action in the

United States District Court for the Western District of

Texas against his employer, the Defendant/Respondent

United States Department of the Treasury and its chief

Administrator, James A. Baker, III, then Secretary of the

Treasury, under the Age Discrimination in Employment

Act of 1967 (ADEA) 29 U.S.C. § 633a. Jurisdiction was

conferred in the District Court by 29 U.S.C. § 633a(c) and

28 U.S.C. §§ 1331 and 1343.

Petitioners’ suit alleged that he had been

discriminated against on the basis of his age, sixty-three,

when he was forced to withdraw from a Revenue Officer

Trainee Program with the Internal Revenue Service and

transfer to a Jower grade position at the Internal Revenue

Service Center. Meanwhile, younger employees with com-

parable records to his own, Petitioner asserted, were

3

allowed to either continue in or join the Revenue Officer

Trainee Program.

The District Court tried the case on March 29, 1989

and took evidence as to both the merits and the jurisdic-

tional issues on which it ultimately decided the claim. On

April 7, 1989, it rendered its Order and Memorandum Opi-

nion (App. A) dismissing Petitioner’s complaint for lack of

jurisdiction due to what the District Court found to be Peti-

tioner’s failure to comply with either the internal ad-

ministrative filing requirements set forth in 29 U.S.C. §

633a(b) and the regulations promulgated thereunder, 29

CFR § 1613.201 et seq. or the alternative administrative

procedures established by § 633a(d). Petitioner made a

timely appeal to the United States Court of Appeals for the

Fifth Circuit which disposed of the case on its summary

calendar, rejecting part of the District Court’s reasoning,

~y affirming the decision and the order of dismissal. (App.

The facts relevant to the decisions below are largely

undisputed. Petitioner was forced to seek the demo-

tion/transfer which he complains was age discriminatory

on or about April 26, 1987. Although he did make some at- .

tempts to “grieve” this action by contacting his Con-

gressman, he did not invoke the Department of Treasury

internal Administrative grievance procedure until

September 24, 1987. (App. A, p.A-2) This date was more

than thirty days from the date of the alleged discrimination

and his complaint was therefore untimely under the federal

regulations governing filing of internal agency age

discrimination claims, see 29 U.S.C. § 633a(b) and 29 CFR

§§ 1613.214(a)(i); A613.511. The District Court therefore

found that, there being no good cause for the late filing, §

1613.214(a)(4), it had no § 633a(b) jurisdiction over the case.

4

However, because he had been advised from the start

that the Department of Treasury was treating his com-

plaint as having been filed out-of-time, Petitioner also at-

tempted to preserve his right to pursue his claim in court

by invoking an alternative administrative procedure set

forth in § 633a(d) which bypasses the internal agency pro-

cedures. The only prerequisite to pursuing this avenue of

relief under the ADEA is that a person file a notice of his

intent to file a civil action within 180 days of the alleged

discrimination and not less than thirty days before institu-

tion of a civil action, 29 U.S.C. § 633a(d). As was held by

the Court of Appeals (App. B, pp.A-6, A-7) Petitioner filed

this notice of intent to file suit on or about October 19,

1987, 176 days from the date of the alleged discrimination.

Petitioner's complaint in District Court was then filed on

May 4, 1988, more than thirty days after this notice of in-

tent was filed. (App. B, p.A-7)

Nonetheless, both the District Court and the Court

of Appeals held that Petitioner’s § 633a(d) filing was also

flawed as a jurisdictional foundation for the District court

action. The District Court’s ground for this conclusion,

that the suit itself was not instituted within 180 days of the

incident (App. A, p.A-3), is clearly based on an incorrect

reading of the law. Although the Court of Appeals properly

rejected the District Court’s incorrect legal rationale, (App.

B, p.A-7) the Court of Appeals did not specifically ar-

ticulate its own rationale. However, Petitioner respectfully

submits that any rationale that the Court of Appeals could

have relied on in rejecting the Petitioners’ claim that §

633a(d) vested jurisdiction in the District Court gives this

Court reason to grant a Writ of Certiorari and review the

decision.

5

REASONS FOR GRANTING THE WRIT

ARGUMENT I

THE COURT OF APPEALS HOLDING THAT THE

PETITIONER’S SUIT WAS FILED TOO LONG AFTER

THE FILING OF THE NOTICE OF INTENT IS

DIRECTLY CONTRARY TO THE EXPRESS

LANGUAGE OF THE ADEA AND TO ESTABLISHED

PRECEDENT OF THIS COURT ON STATUTORY

CONSTRUCTION.

The statutory scheme established by 29 U.S.C. §

633a permits federal employees to protect their right to be

free from age discrimination in employment by filing ac-

tions in federal district court, 29 U.S.C. § 633a(c), provided

only that the employee first complies with one of two alter-

native administrative prerequisites or predicates to filing

such suit. The first alternative, controlled by 29 U.S.C. §

633a(b) and an extensive regulatory scheme set forth at 29

CFR, Chapter SIV, Part 1613, consists of a complex inter-

nal agency administrative, investigative and adjudicative

process for ascertaining the merits of age discrimination

complaints and for resolving them, 29 CFR §&§

1613.214-222; § 1613.511, culminating in an appeal to the

EEOC as an appellate and enforcement body, § 1613.521

and ultimately, if the matter is not otherwise satisfactorily

resolved, to federal court, § 1613.513. The § 633a(b) pro-

cedures must be invoked within thirty days of the alleged

discrimination, or the right to employ them is lost, 29 CFR

§ 1613.214. (App. A, p.A-1).

The second alternative administrative prerequisite

to suit, controlled by 29 U.S.C. § 633a(d) allows an

employee to bypass the internal agency remedy by filing,

within 180 days of the alleged discrimination, a notice of

6

his intent to file a civil action. (App. B, p.A-7).

Petitioner does not seek to challenge the determina-

tion that his efforts under § 633a(b) were untimely. He

does, however, submit that this Court should review the

decision by the Court below that his § 633a(d) efforts were

also an ineffective predicate for his suit.

While enigmatic in several vital respects, the Court

of Appeals decision is clear and unambiguous on three

basic matters relevant to Petitioner’s claim that he should

be permitted to maintain this action pursuant to § 633a(d)

of the ADEA:

First, the Court of Appeals held expressly that §

633a(d) is the portion of the statute relevant to the Peti-

tioner’s claim. (App. B, p.A-6, A-8).

Second, the court of Appeals held expressly that §

633a(d) is complied with by filing notice of intent to sue

within 180 days of the act of discrimination complained of,

but does not require that the actual suit be filed within that

time (App. B, p.A-A-7).!

Third, the Court of Appeals found that the Petitioner

did in fact file the requisite notice of intent to sue on or

about October 19, 1987, (App. B, pp. A-6, A-7) which date

is within 180 days of April 26, 1987, the date on which Peti-

tioner alleges he was discriminated against.

1. In holding this, the Court of Appeals reversed the erroneous conclu-

sion of the District Court that § 633a required the actual suit to be filed

within 180 days, (App. A, p.A-3). This error of the District Court may

have had its origin in dicta in Castro v. U.S., 775 F.2d 399, 403 (1st Cir.

1985) and McKinney v. Dole, 765 F.2d 1129, 1140 (D.C. Cir. 1985).

7

Notwithstanding these correct conclusions, however, the

Court of Appeals reached the rather startling further con-

clusion that Petitioner's otherwise timely filing of a notice

of intent to file suit was ‘‘not effective’ as a predicate for

the instant civil action because Petitioner ‘‘did not initiate

the present action in federal court until May 4, 1988.”

(App. B, p.A-7) This is somewhat puzzling because the

date, May 4, 1988, is clearly a date ‘‘not less than thirty

days’’, § 633a(d), after the filing of the notice of intent to

sue.”

The Court of Appeals does not articulate its rationale

for why the May, 4, 1988 suit filing renders the October 19,

1987 notice filing ‘‘not effective.’’ However, if it is the

2. This date is also well within any statute of limitations which might

apply to this action. ADEA actions by non-federal employees, 29 U.S.C.

§ 626, must be filed within the time provided for under the Portal to Por-

tal Act, 29 U.S.C. § 255 which establishes a two-year statute of limita-

tions for non-wilful violations and three-year statute for wilful viola-

tions. This Court has not spoken on whether or not this statute of limita-

tions applies to federal employee ADEA actions, though at least one

lower court has assumed that it did, Wiersma v. Tennessee Valley

Authority, (Civil Action No. 3-85-1160 Eastern District of Tennessee,

March 12, 1986), 41 BNA FEP CAS 1588, 41 CCH EPD Paragraphs

36518, 36519. Even if the distinction between federal and non-federal

employee actions under the ADEA were to prevent this statute of

limitations from applying, see Lehman v. Nakshian, 453 U.S. 156 (1972),

the only other applicable limitation would be that contained in 28 U.S.C.

§ 2401(a) which establishes a six year limitation period for initiating ac-

tions against the United States. This is, apparently, the statute of

limitations the manual furnished to Petitioner contemplates

(Tr. p.22). A final alternative would be that in not specifically prescrib-

ing a statute of limitations under § 633a the Congress was simply set-

ting up a scheme parallel to that under Title VII of the Civil Rights Act

of 1964 which prescribes no absolute limitation for the filing of actions

under that statute, but simply requires that, unless otherwise excused

by equitable modifications, Zipes v. TWA, Inc., 455 U.S. 385 (1982), the

administrative procedure be invoked within 180 days. Section 633a(d)

simply requires invoking the administrative procedure through notice of

intent to file suit within 180 days of the alleged discrimination,

something which the Petitioner here did.

8

seven month time lapse between those two dates, then the

Court of Appeals apparently misread the statute and inter-

preted the provision requiring that suit be filed after giving

notice of “‘not less than thirty days’ 29 U.S.C. § 633a(d)

(emphasis added) as if it meant that suit must be filed ‘‘not

more thirty days’ from the notice. Thus, the Court of Ap-

peals apparently construed the statute to mean that the

notice was ‘‘not effective’’ because May 4th is more than

thirty days from October 19th.°

The clear language of the statute does not support

this reading. The statute states specifically that

[no] civil action may be commenced . . . under this

section until the individual has given the Com-

mission not less than thirty days notice of intent

to file {a civil] action, 29 U.S.C. § 633a (d). (em-

phasis added)

In plain English, this statute says that the Commission

must be given a minimum of thirty days notice. It does not,

however, prevent a notice longer than thirty days from be-

ing effective.

Although this Court has had one occasion to inter-

pret the language of and congressional intent underlying

the federal protective provision of the ADEA contained in

29 U.S.C. § 633a, Lehman v. Nakshian, 453 U.S. 156 (1972)

it does not address the specific language at issue here.

However, it is a fundamental tenet of statutory construc-

tion that the plain language of a statute establishes the

3. In concluding this, the Court of Appeals may simply have adopted a

similar error made by the District Court when the District Court held

that under § 633a(d) a complainant is required to ‘notify the EEOC

within thirty days prior to commencing suit" (App. A, p.A-3).

9

meaning of a statute unless there is an ambiguity of

language or express legislative intent to the contrary,

NLRB v. Amax Coal Co., 453 U.S. 322 (1981), Jefferson

County Pharmaceutical Association v. Abbott

Laboratories, 460 U.S. 150, 157, reh. den. 460 U.S. 1105

(1983), Escondido Water Co. v. La Jolla Band of Mission

Indians, 466 U.S. 765, 772, reh. den. 467 U.S. 1267 (1984),

American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982),

or the circumstances of enactment indicate otherwise, e.g.,

Watt v. Alaska, 451 U.S. 259, 266-67 (1981) or reliance on

the specific language would defeat the plain purpose of the

statute, e.g., Bob Jones University v. U.S., 461 U.S. 574,

586 (1983).

Petitioner submits that there is no basis in the in-

stant case to construe § 633a(d) any way other than as it

literally reads: that an ADEA civil action filed at any time

thirty days or more after the filing of a notice of intent is

timely and that the passage of seven months does not

render a otherwise timely notice of intent ‘‘not effective’ as

a predicate to suit. This Court should grant Petitioner's

Writ to correct this clear error of law on the part of the

Court of Appeals.

ARGUMENT II

THE COURT OF APPEALS, IN CONFLICT WITH

DECISIONS OF OTHER CIRCUITS, ERRONEOUSLY

BOUND PETITIONER TO AN ELECTION AND EX-

HAUSTION OF REMEDIES NOT REQUIRED BY THE

STATUTE.

An alternative rationale for the Court of Appeals’

conclusion that Petitioner's otherwise timely § 633a(d)

notice was not an effective jurisdictional predicate for the

instant case lies in a combined election and exhaustion of

10

remedies theory. Under that theory, the Court of Appeals’

affirmance of the dismissal of Petitioner's case rests on an

underlying conclusion that Petitioner’s attempt to invoke

the § 633a(b) internal remedies — even though the effort

was untimely and therefore ineffective to him as an avenue

of relief — precluded altogether his use of the § 633a(d)

notice option as a predicate for his suit.

Petitioner submits that this is cor*-ary to the

language and purposes of § 15 (29 U.S.C. § | 3a) of the

ADEA: to extend to federal employees a substantive right

to protection against age discrimination in employment,

Nakshian, 453 U.S. at 167, and to accord federal employees

the right to enforce this protection in the federal courts,

453 U.S. at 162.

Like other anti-discrimination statutory schemes,

the ADEA should be liberally construed in order to max-

imize its remedial purposes and avoid unduly restrictive

procedural barriers to access by aggrieved persons to the

courts, Zipes v. TWA, Inc., 455 U.S. 385, 395 n.11 (1982),

see also Ray v. Nimmo, 704 F.2d 1480, 1483-84, (11th Cir.

1983). Congress furthered this effort when it extended the

ADEA to federal employees in 1978 by eliminating a pro-

cedural barrier which it had previously imposed on federal

race and sex discrimination claimants under § 717 of Title

VII of the Civil Rights Act: that of requiring exhaustion of

internal agency remedies prior to going to court, 42 U.S.C.

§ 2000e-16(c), Brown v. General Services Admn., 425 U.S.

820 (1976). Instead, when Congress adopted the federal

ADEA provisions, it specifically gave federal age

discrimination claimants the option of bypassing the agen-

cy procedures, 29 U.S.C. § 633a(d), Proud v. U.S., 872 F.2d

1066 (D.C. Cir. 1989). When the Equal Employment Oppor-

tunity Commission promulgated regulations covering

federal employee age claims, 29 CFR § 1613.501-521, it

11

incorporated much of the procedural regulatory scheme it

had developed under Title VII, §§ 1613.511. However, it

specifically excluded all references to requiring final agen-

cy action as a predicate for suit under the ADEA, e.q. §§

1613.514; 1613.521.

Notwithstanding this relatively straightforward

statutory scheme, a conflict has developed among the cir-

cuits as to whether or not the ADEA means what it says

about permitting federal employees to bypass the ad-

ministrative ‘process, compare Langford v. U.S. Army

Corp. of Engineers, 839 F.2d 1192, 1194-95 (6th Cir. 1988)

with Castro v. U.S., 775 F.2d 399, 404 (1st Cir. 1985), and

Purtill v. Harris, 658 F.2d 134, 137 (3rd Cir. 1981) cert. den.,

462 U.S. 1131 (1983).4 With its decision in the instant case,

the Fifth Circuit has inserted itself directly into this

conflict.

The most recent court to consider this issue at length

has been the Sixth Circuit in Langford, 839 F.2d at

1194-95, in which it concluded that the law did not require

a federal ADEA plaintiff to irretrievably elect between his

633a(b) and 633a(d) remedies. The Langford Court allowed

the plaintiff to proceed in court on the basis of a § 633a(d)

filing even though he had deliberately abandoned § 633a(b)

procedures in order to do so. The District Court had

dismissed the plaintiff's complaint specifically on the

4 The Ninth Circuit has inclined towards the Purtill and Castro election/

exhaustion requirements, see Romain v. Shear, 799 F.2d 1416 (9th Cir.

1986) cert den., 481 U.S. 1050 (1987), Limongelli v. U.S.P.S., 707 F.2d

368, 373 (9th Cir. 1983). Unlike Langford, Castro, and Purtill, however,

the Ninth Circuit cases did not require disposition on this issue to arrive

at the outcome and therefore did not address the issue in depth. The

Eleventh Circuit, in Ray v. Nimmo, 704 F.2d at 1484-85, n.12,

acknowledges the existence of the election/exhaustion issue and, though

apparently inclined towards the Langford position, declined to directly

address the issue as it was not necessary for disposition of the case.

an 12

-

grounds that once the § 633a(b) internal agency route had

been elected by the plaintiff it could not be abandoned in

favor of a § 633a(d) direct one, Langford, 839 F.2d at 1194.

The Sixth Circuit Court of Appeals, however, revers-

ed and held that:

Unlike the Civil Rights Act which generally re-

quires exhaustion of administrative remedies

before a government employee ... may file a civil

action, see 42 U.S.C. § 2000e-16(c), the ADEA

provides two separate avenues of relief to a

federal employee ... who believes that he has been

a victim of age discrimination...(:)

** *

He may file an administrative complaint with the

employing federal agency and if the employing

agency’s determination is adverse to him, he may

appeal to the [EEOC] for administrative review,

29 U.S.C. § 633a(b), see 29 C.F.R. §§ 1613.501 -

1613.521 (1980). After the administrative com-

plaint has been filed with the commission, a civil

action may then be instituted. 29 U.S.C. §§

633a(c),(d). Alternatively, the employee has the

option under the Act to bypass the ad-

ministrative process either in part or in its entire-

ty and proceed directly to federal court thirty

days after notice of intent to sue has been given

to the [EEOC] as long as such notice is given

‘within 180 days after the alleged unlawful prac-

tice occurred’. 29 U.S.C. § 633a(d) ... (emphasis

added)(citations omitted) 839 F.2d at 1194-95.

The Sixth Circuit relies on the statutory language

and EEOC regulations in finding that Congress’ decision to

allow ADEA claimants direct access to the Courts over-

13

rode any policy arguments for encouraging administrative

resolution of claims before permitting access to Court.

Ironically, it derived much of its rationale from the case of

Patterson v. Weinberger, 644 F.2d 521, 523-525 (5th Cir.

1981), a decision which the Fifth Circuit panel in the ins-

tant case does not even refer to, and which is apparently no

longer considered binding law by the Courts in the Fifth

Circuit.®

As the Langford Court acknowledges, its interpreta-

tion that § 633a permits an employee to pursue § 633a(d)

efforts even after attempting to invoke § 633a(b) pro-

cedures is directly at odds with decisions in the Third and

First Circuits, Purtill, 658 F.2d 134, Castro, 775 F.2d 399.

These cases hold that encouraging administrative resolu-

tion of federal employee age discrimination claims is more

important under the statutory scheme than permitting

direct access by these claimants to federal court. They

therefore hold that federal employees, once they attempt to

invoke the internal administrative process, are irrevocably

bound to it and may not invoke any other method of

dispute resolution.

Petitioner, of course, submits that the Langford posi-

tion is the better one. However, for purposes of this Peti-

tion, Petitioner merely urges that this Court recognize the

5 Although the Fifth Circuit recently cited Patterson with approval, /r-

win v. V.A., 874 F.2d 1092, 1096, n.25 (5th Cir. 1989) § 633a(d) jurisdic-

tion was rejected in that case not because 633a(b) procedures had been

invoked, but because the notice the plaintiff relied on as a § 633a(d)

notice did not mention the age claim. The only reported case in the Fifth

Circuit addressing the viability of Patterson in the present context,

other than the instant case, is a decision of the same District Court

which expressly rejects the argument that Patterson mandates a

Langford approach, and instead adopts the Purtill and Castro decisions

as ‘‘more persuasive.’’ White v. Franks, 718 F.Supp. 592, 595 (W.D. Tx

1989).

14

irreconcilable conflict among the circuits on this important

question of law and requests that certiorari be granted to

resolve it.®

CONCLUSION

For the foregoing reasons, Petitioner respectfully

submits that his Petition for Writ of Certiorari should be

granted; the Writ should issue to the United States Court

of Appeals for the Fifth Circuit, and his case should

thereby be reviewed.

Respectfully submitted,

CHARLES Z. STEVENS, III

By: /s/_ __ Alison Steiner

ALISON STEINER, Counsel of Record

Alison Steiner, Esq.

ADELMAN & STEINER, P.A.

224 Second Avenue

P. O. Box 368

Hattiesburg, MS 39403-0368

601/544-8291

Darwin McKee, Esq.

600 West 8th Street, Suite 100

Austin, TX 78701

512/477-0925

COUNSEL FOR PETITIONER,

6 Although certiorari was sought and denied in both Romain v. SHear,

481 U.S. 1050, and Purtill v. Harris, 462 U.S. 1131, neither petition

sought review of the election/exhaustion question, see Romain v. Shear,

55 U.S.L.W. 3734 (1987), Purtill v. Schweiker, 51 U.S.L.W. 3062 (1982).

A-1l

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

FILED

APR 7 1989

CHARLES STEVENS

V. A-88-CA-340

U.S. TREASURY DEPARTMENT

ORDER AND MEMORANDUM OPINION

BEFORE THIS COURT on March 29, 1989 came

the parties for trial on Plaintiff's claim that he was ter-

minated by the U.S. Treasury Department in violation of

the Age Discrimination in Employment Act. On agreement

of the parties the cause was tried without a jury. Defend-

ant, from the outset, claimed that the Court lacks jurisdic-

tion over this matter because Plaintiff failed to contact an

agency Equal Employment Opportunity Counselor within

30 days of the alleged discriminatory act as required by 29

C.F.R. Sec. 1613.214(a) and 29 U.S.C. Sec. 633a(b). The

Court heard testimony on the jurisdictional issues as well

as the merits of Plaintiff's ADEA claim. Upon review of

the evidence and arguments of counsel, the Court is of the

opinion that the jurisdictional issue is dispositive of the

case. The Court will not reach the merits of Plaintiff's

claim.!

1. The Court notes that the parties were ably represented by counsel.

Though this cause will be dismissed on jurisdictional grounds, the

Record demonstrates that during the period relevant to 29 C.F.R. Sec.

1613.214(a), counsel had not been contacted by the Plaintiff.

A-2

Findings of Fact

Charles Z. Stevens was employed at the Austin Ser-

vice Center, Internal Revenue Service, from January 1985

to August 16, 1986 at the Government Service grade 6

level. On August 17, 1986, Stevens became a Revenue Of-

ficer in Training at the grade 7 level. During the proba-

tionary period of his employment, on April 26, 1987,

Stevens was asked to resign from the Revenue Officer

Training program and returned at lower rank to a Tax Ex-

amining Assistant position. This is the employment deci-

sion from which Stevens seeks redress under the Age

Discrimination in Employment Act.

The Court finds that during the Revenue Officer

Orientation Training from August 17, 1986 to August 21,

1986 Stevens was instructed about the Equal Employment

Opportunity filing procedures. Though it is unclear

whether Stevens affirmatively stated to superiors that he

believed that his age was used as an impermissible criteria

in the employment decision, on a date no later than May 21,

1987, in a letter to his Congressman, Stevens determined

that age was a determining factor in the employment deci-

sion of April 26, 1987.

On September 24, 1987 Stevens requested an inter-

view with an EEO Counselor and on September 29, 1987

accomplished the interview. On October 19, 1987, Stevens

filed a complaint with the Department of Treasury alleging

discrimination in violation of the ADEA in the decision of

April 26, 1987.

The Court finds that at Plaintiff's work locations

EEO notices were prominent and that EEO materials were

given to Plaintiff. Stevens was given substantial and ade-

quate notice of the limitations requirements for bringing an

A-3

EEO complaint.

Plaintiff has not demonstrated equitable grounds to

toll the running of the 30 day limitations.

Conclusions of Law

Under the Age Discrimination Employment Act, 29

U.S.C. Sec. 633a, an employee who believes that he has

been discriminated against because of age has two avenues

of relief under the ADEA. The employee may proceed

directly to federal court and initiate an action no later than

180 days from the unlawful action and notify the EEOC

within 30 days prior to commencing suit. 29 U.S.C. Sec.

633a(d). In the alternative, the employee may file an ad-

ministrative complaint with the employing federal agency

and appeal an adverse finding to the Equal Employment

Opportunity Commission. Under this second procedure, an

unsatisfied employee may bring a federal civil action only

after exhausting his administrative remedies. 29 U.S.C.

Sec. 633a(b).

Because Stevens did not timely bring an EEO

grievance, he must demonstrate that he was not aware of

the applicable EEO administrative procedures or that

there are circumstances which entitle him to an equitable

tolling in the commencement of the running of the 30 day

time period. 29 C.F.R. Sec. 1613, 214(a)(4); Oaxca v. Roscoe,

641 F.2d 386, 391 (1981).

Plaintiff failed to demonstrate equitable grounds to

toll the commencement of the running of the 30 day time

period prior to filing with the EEO. There is no evidence in

the Record other than Plaintiff's statement that he did not

see the EEO notices to support a finding that he was not

informed of the filing requirement. As alternate grounds

A-4

for the delay, Plaintiff states that his letter to a United

States Representative supports a finding that Plaintiff

pursued other grounds to seek redress. However, the EEO

guidelines state with specificity the correct steps an

employee must take to invoke the protection of federal law

from employment discrimination. Though contacting a

Congressman may be effective, it does not preserve the

EEO and civil litigation remedy. There are insufficient

grounds to support an equitable tolling of the limitations

period.

FOR THE FOREGOING REASONS, this Court is

without jurisdiction to apply Age Discrimination Employ-

ment Act to the circumstances of Stevens’ demotion in

April, 1987.

IT IS ORDERED that the above-numbered cause is

dismissed with prejudice. Cost are assigned to the party in-

curring them.

SIGNED AND ENTERED, this, the 5th day of April,

1989.

/s/ Lucius D. Bunton

Lucuis D. Bunton

Chief Judge

A-5

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-1432

Summary Calendar

CHARLES Z. STEVENS III,

Plaintiff-Appellant,

versus

UNITED STATES DEPARTMENT

OF THE TREASUREY, et al.,

Defendants- Appellees

From the United States District Court

for the Western District of Texas

(A 88 CA 340)

(February 21, 1990)

Before REAVLEY, KING, and JOHNSON, Circuit

Judges.

PER CURIAM:*

* Local Rule 47.5 provides: “The publication of opinions that have no

precedential value and merely decide particular cases on the

well-settled principles of law imposes needless expense on the public and

burdens on the legal profession.’’ Pursuant to that Rule, the

determined that this opinion should not be published.

A-6

This is an appeal from the district court's dismissal

of Charles Z. Stevens III (‘‘Stevens’’) action against the

United States, under the Age Discrimination in Employ-

ment Act (“ADEA”), 29 U.S.C. 623 et seq. Stevens argues

that the district court erred in finding that Stevens failed

to file a complaint with the Equal Employment Opportuni-

ty Commission (‘“‘EEOC”’) in a timely manner.

I. Facts and Procedural History

The facts are not in duspute. Stevens was employed

at the Austin Service Center of the Internal Revenue Ser-

vice, January 1985 to August 16, 1986. On August 17,

1986 became a Revenue Officer in Training at the

grade seven level. During the probationary period of his

employment, Stevens was asked to resign from the training

program and he was returned to his previous rank on April

26, 1987.

On September 24, 1987 Stevens requested an inter-

view with an EEO Counselor, and received an interview on

September 29, 1987. Stevems did not file a complaint or a

notice of an intent to file a civil action with the EEOC until

October 19, 1987. The district court determined that this

was not timely. This Court affirms.

Il. Holding and Reasons

The district court cited section 633a(d) of the ADEA

to support its decision that Stevens did not file a timely

complaint with the EEOC. The district court explained the

law as follows:

‘[AJn employee who believes he has been

discriminated against has two avenues of relief

under the ADEA. The employee may proceed

directly to federal court and initiate an action no

A-7

later than 180 days from the unlawful action and

notify the EEOC within 30 days prior to commen-

cing suit, * * * In the alternative, the employee

may file an administrative complaint with the

employing federal agency and appeal an adverse

finding to the [EEOC]. Record Excerpt p. 5 (em-

phasis added).

The relevant portion of section 633a(d) states:

[njo civil action may be commenced by any in-

dividual under this section until the individual

has given the Commission not less than thirty

days’ notice of an intent to file [a civil] action.

Such notice shall be filed [with the EEOC] within

one hundred and eighty days after the alleged

unlawful practice occurred. (emphasis added).

Contrary to what the district court stated, Stevens had to

file a notice of intent to sue with the EEOC within 180 days

of the alleged discriminatory action. Stevens did not have

to initiate his federal action within 180 days of the alleged

action, but merely give notice to the EEOC of his intention

to initiate a civil action. Stevens stated at the bottom of his

complaint of October 19, 1987 that his complaint would

also serve as notice of Stevens’ intention to file a civil

claim. However, Stevens did not initiate the present action

in federal court until May 4, 1988, therefore Stevens’ notice

to the EEOC, of October 19, 1987 was not effective.

Stevens’ contention that sections of the Code of

Federal Regulations indicate that the district court erred,

is without merit. The sections cited by Stevens do not app-

ly to federal employees.

A-8

II1l. CONCLUSION

Although the district court did not state the ap-

plicable law correctly, ultimately the correct result was

reached since Stevens failed to meet the requirements set

forth in 29 U.S.C. 633a(d).

AFFIRMED

A-9

APPENDIX C

29 U.S.C. § 633a provides in pertinent part:

(b) Except as otherwise provided in this subsec-

tion, the Civil Service Commission is authorized

to enforce the provisions of subsection (a) through

wil etoctemte che paiche df Gin ements

Civil Service Commission shall issue such rules,

regulations, orders, and instructions as it deems

necessary and appropriate to carry out its respon-

sibilities under this section. The Civil Service

Commission shal]l—

(1) be responsible for the review and evaluation of

the operation of all agency programs designed to

carry out the policy of this section, periodically

obtaining and (on at least a semian-

nual basis) progress reports from each depart-

ment, agency, or unit referred to in subsection (a);

(2) consult with and solicit the recommendations

of interested individuals, groups, and organiza-

tions relating to nondiscrimination in employ-

ment on account of age; and

(3) provide for the acceptance and processing of

complaints of discrimination in Federal employ-

ment on account of age.

The head of each such department, agency, or

unit shall comply with such rules, regulations,

orders, and instructions of the Civil Service Com-

mission which shall include a provision that an

employee or applicant for employment shall be

notified of any final action taken on any com-

plaint of discrimination filed by him thereunder.

Reasonable exemptions to the provisions of this

A-10

section may be established by the Commission

bat enly oan he Cee

maximum age requirement on the basis a deter .

mination that age is a bona fide occupational

qualification necessary to the performance of the

duties of the position. With respect to employ-

ment in the Library of Congress, authorities

granted in this subsection to the Civil Service

Commission shall be exercised by the Librarian of

Congress.

(c) Any person aggrieved may bring a civil action

in any Federal district court of "<r

jurisdiction for such legal or equitable as

will effectuate the purposes of this Act.

(d) When the individual ee t

concerning discrimination wi Commis-

sian, no chell exten may bocemmmeneed ty any >

dividual under this section until the individual

has given the Commission not less than thirty

days’ notice of an intent to file such action. Such

notice shall be filed within one hundred and

eighty days after the alleged unlawful practice oc-

curred. Upon receiving a notice of intent to sue,

the Commission shall promptly notify all persons

named therein as prospective defendants in the

action and any appropriate action to assure

the elimina of any unlawful practice.

A-1l

APPENDIX D

29 CFR ch. XIV, Part 1613 provides in pertinent part:

§ 1613.214 Filing and processing of complaint.

(a) Time limits. (1) An agency shall require that a

complaint be submitted in writing by the complainant or

representative and be signed by the complainant. The com-

plaint may be delivered in person or submitted by mail. The

agency may accept the complaint for processing in accord-

ance with this subpart only if:

(i) The complainant brought to the attention of the

Equal Employment Opportunity Counselor the matter

causing him/her to believe he/she had been discriminated

against within 30 calendar days of the date of the alleged

discriminatory event, the effective date of an alleged

discriminatory personnel action, or the date that the ag-

grieved person knew or reasonably should have known of

the discriminatory event or personnel action; and

(ii) The complainant or representative submitted the

written complaint to an appropriate official within 15

calendar days after the date of receipt of the notice of the

right to file a complaint.

(2) The appropriate officials to receive complaints are

the head of the agency, the agency’s Director of Equal

Employment Opportunity, the head of a field installation,

and such other officials as the agency may designate for

that purpose. Upon receipt of the complaint, the agency of-

ficial shall transmit it to the Director of Equal Employ-

ment Opportunity or appropriate Equal Employment Op-

portunity Officer who shall acknowledge its receipt in ac-

cordance with paragraph (a)(3) of this section.

A-12

(3) A complaint shall be deemed filed on the date it

is received, if delivered to an appropriate official, or on the

date postmarked if addressed to an appropriate official

designated to receive complaints. The agency shall

acknowledge, in writing, to the complainant or represent-

ative receipt of the complaint and advise the complainant

in writing of all administrative rights and of the right to

file a civil action as set forth in §1613.281, including the

time limits imposed on the exercise of these rights.

(4) The agency shall extend the time limits in this sec-

tion when the complainant shows that he/she was not

notified of the time limits and was not otherwise aware of

them, was prevented by circumstances beyond the com-

plainant’s control from submitting the matter within the

time limits; or for other reasons considered sufficient by

the agency.

(b)Representation and official time. (1) At the stage

in the processjng of a complaint, including the counseling

stage under §1613.213, the complainant shall have the

right to be accompanied, represented, and advised by a

representative of complainant’s choice.

(2) If the complainant is an employee of the agency,

he/she shall have a reasonable amount of official time to

prepare the complaint if otherwise on duty. If the complain-

ant is an employee of the agency and he designates another

employee of the agency as his/her representative, the

representative shall have a reasonable amount of official

time, if otherwise on duty, to prepare the complaint. The

agency is not obligated to change work schedules, incur

overtime wages, or pay travel expenses to facilitate the

choice of a specific representative or to allow the complain-

ant and representative to confer. However, the complain-

ant and representative, if employed by the agency and

otherwise in a pay status, shall be on official time,

regardless of their tour of duty, when their presence is

authorized or required by the agency or the commission

A-13

during the investigation, informal adjustment, or hearing

on the complaint.

(3) In cases where the representation of a complain-

ant or agency would conflict with the official or collateral

duties of the representative, the Commission (or the agency

prior to a hearing on the complaint) may, after giving the

representative an opportunity to respond, disqualify the

representative.

Subpart E—Nondiscrimination on Account of Age

GENERAL PROVISIONS

§ 1613.501 Purpose and applicability.

(a) Purpose. This subpart sets forth the policy under

which an agency shall establish a continuing program to

assure nondiscrimination on account of age and the regula-

tions under which an agency will process complaints of

discrimination on account of age.

(b) Applicability. (1) this subpart applies (i) to

military departments as defined in section 102 of title 5.

United States Code, and Executive agencies as defined in

section 105 of title 5. United States Code, the United

States Postal Service and the Postal Rate Commission, and

to the employees thereof, including employees paid from

non-appropriated funds, and (ii) to those units of the

legislative and judicial branches of the Federal Govern-

ment and the Government of the District of Columbia hav

ing positions in the competitive service and to the

employees of those positions. (2) This subpart does not ap-

ply to aliens employed outside the limits of the United

States. (3) Except as provided by paragraph (b)(2) of this

section, this subpart applies to applicants for positions to

which paragraph pm) of this section applies. (4) This

A-14

subpart applies to employees and applicants for employ-

ment who are at least 40 years of age.

(c) Exceptions. Reasonable exemptions to the provi-

sions of this subpart may be established by the Commis-

sion for each position for which the Commission establishes

a maximum age requirement on the basis of a determina-

tion that age is a bona fide occupational qualification

necessary to the performance of the duties of the position.

§ 1613.502 General Policy.

It is policy of the Government of the United States

(and of the government of the District of Columbia) to pro-

hibit discrimination in employment on account of age to

assure that all personnel actions affecting employees or ap-

plicants for employment are free from discrimination on ac-

count of age.

AGENCY REGULATIONS FOR PROCESSING

COMPLAINTS OF DISCRIMINATION

§ 1613.511 General.

An Agency shall provide regulations governing the

acceptance and processing of complaints of discrimination

on account of age which, subject to § 1613.514, comply

with the principles and requirements in §§ 1613.213

through 1613.222, 1613.241 and 1613.261 through

1613.271 of this part.

§ 1613.512 Coverage.

The agency shall provide in its regulations for the ac-

ceptance of a complaint from any aggrieved employee or

applicant for employment with the agency who believes

A-15

that he or she has been discriminated against on-account of

age and who, at the time of the action complained of, was

an employee or applicant for employment at least 40 years

of age. A complaint may also be filed by an organization for

the person with his or her consent.

§ 1613.513 Effect on Administrative Processing.

The filing of a civil action by an employee or appli-

cant involving a complaint filed under this subpart ter-

minates processing of that complaint.

§ 1613.514 Exclusions.

Sections 1613.281 and 1613.282 shall not apply to

the processing of discrimination complaints on account of

age. The reference to § 1613.281 in §§ 1613.215, 1613.217,

1613.220, and 1613.221 may not be included in agency

regulations required by this subpart.

§ 1613.521. Appeal to the Commission.

Except for the requirements in § 1613.234 that the

decision of the Office of Review and Appeals contain a

notice of the right to file a civil action in accordance with

§ 1613.282, §§ 1613.231 through 1613.240 of this part shall

apply to this subpart.

A