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May 24, 1973

Karen A. Harrison, Plaintiff
Earl L. Butz et al., Defendants

Waddy, D.J.

The opinion of the court was delivered by: WADDY


This is a suit brought by a Negro female former employee of the United States Department of Agriculture in which she claims that she was unlawfully discriminated against on account of her race and sex. *fn1" She has sued the Secretary of Agriculture, the Civil Service Commission and the United States. She seeks declaratory relief and an order remanding her complaint of discrimination to the Civil Service Commission with instructions to direct the Department of Agriculture to grant her a hearing. The case is before the Court on cross-motions for summary judgment.

 The following facts are undisputed:

 On and before September 3, 1971, plaintiff, a black citizen of the United States was employed by the Department of Agriculture as a clerk-typist, GS-3. She aspired to a data processing position. She was informed that her performance rating did not qualify her to be placed on the register for that position.

 On September 3, 1971, plaintiff filed a complaint of racial discrimination under Executive Order No. 11478, claiming that two supervisors had discriminated against her because of her race by deliberately giving her a performance rating low enough to prevent her from being considered "highly qualified" under the Merit Promotion Program. The rating was given to her in June, 1971.

 On December 16, 1971, plaintiff was notified by her employer that she would be terminated effective January 8, 1972, for failure to qualify during her probationary period because of unsatisfactory conduct, attitude, uncooperativeness and refusal to accept an assignment on November 30, 1971. In the notice plaintiff was advised that she had the right to appeal the decision to terminate her to the U.S. Civil Service Commission, within fifteen days after the effective date of termination, if she claimed that she was terminated because of her race, color, religion, sex or national origin and also if she alleged that the action was based on political reasons or marital status or resulted from improper discrimination because of physical handicap.

 Plaintiff has never appealed the action terminating her employment.

 On March 30, 1972, plaintiff was advised by the agency that the evidence did not support her charge of discrimination and that it was the proposed decision of the agency that she was not discriminated against with respect to her ratings. She was advised of her right to request a hearing.

 Upon plaintiff's request the agency asked the Appeals Examining Officer, U.S. Civil Service Commission, to assign an Appeals Examiner to hear her complaint of discrimination.

 After reviewing the file, that Office, by letter dated June 20, 1972, notified Jerome Shuman, the Director, Office of Equal Opportunity, the Agriculture Department, that although the complaint file indicated that plaintiff had been terminated, her complaint involved previous performance appraisals rather than the termination action. Accordingly, the Appeals Examining Office returned the complaint file to the agency for processing in accordance with Section 713.215 of the Civil Service Regulations.

 The regulation (5 CFR 713.215) referred to by the Appeals Examining Office provides:

"Rejection or cancellation of complaint. When the head of the agency, or his designee, decides to reject a complaint because it was not timely filed or because it is not within the purview of section 713.215 or to cancel a complaint because of a failure of the complainant to prosecute the complaint or because of a separation of the complainant which is not related to his complaint, he shall transmit the decision by letter to the complainant and his representative. The decision letter shall inform the complainant of his right to appeal the decision of the agency to the Commission and of the time limit within which the appeal may be submitted."

 By letter dated July 3, 1972 to plaintiff, Mr. Shuman informed plaintiff that he had reviewed the entire file and stated his findings as follows:

"1. The termination notice, dated December 16, 1971, shows that you were terminated during your probationary period because you have not demonstrated a cooperative attitude and willingness to accept normal supervisory direction expected of employees of the Agency. Your refusal to accept an assignment on November 30, ...

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