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April 23, 1974

William M. Spencer et al., Plaintiffs,
James R. Schlesinger, Secretary of Defense et al., Defendants

Corcoran, D.J.

The opinion of the court was delivered by: CORCORAN

This action is one for injunctive and monetary relief. It arises out of alleged racially discriminatory employment practices in the Defense Communications Agency (DCA) of the United States Department of Defense. Individual plaintiffs William Spencer, Gary Griffin and Frederick Bradley are black employees of DCA. The Black Employees Against Discrimination (BEAD), an association of some 44 black employees of DCA, had been joined as a plaintiff by the amended complaint. *fn1"


 All plaintiffs allege a broad range of racially discriminatory employment practices at DCA in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970), as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 (Supp. II, 1972).

 This Court's jurisdiction is invoked pursuant to 42 U.S.C. § 2000e-16(c) and 28 U.S.C. § 1343(4) (1970). *fn3"

 In addition to the plaintiffs' motion for class action certification there is also before the Court at this time defendants' motion to dismiss or, alternatively, for summary judgment. The Court (1) denies the motion to certify as a class action; (2) dismisses the claims of co-plaintiffs Griffin and Bradley and BEAD; and (3) remands the complaint of Spencer to the DCA for further action not inconsistent herewith.


 On September 21, 1972, plaintiff Spencer registered an informal complaint with DCA, pursuant to 5 C.F.R. § 713.213 (1973). He alleged racial discrimination in the filling of a Communications Specialist GS-12 position at DCA for which both Spencer and plaintiff Griffin had applied and been rejected. A white applicant was selected.

 In accordance with DCA grievance procedures, Spencer chose Griffin as his Equal Employment Opportunity Counselor to investigate his complaint. Griffin reported evidence of "institutionalized discrimination or systematic exclusion of blacks in higher positions" at DCA. (DCA Administrative Record, Tab A-1, hereinafter cited as Record.)

 As a result of that report, Spencer, on October 25, 1972, filed a timely complaint pursuant to 42 U.S.C. § 2000e-16(a) and 5 C.F.R. § 713.214, with the Director of Equal Employment Opportunity at DCA. (Id.) Spencer alleged personal grievances and a policy of "institutionalized racism" at DCA. The agency conducted an extensive investigation of his claims pursuant to 5 C.F.R. § 713.216 and issued a report adverse to Spencer's individual claim. Additionally, the DCA report found that "institutionalized racism is neither the policy nor the practice of DCA." (Record, Tab A-1.)

 In the meantime Spencer had consulted with counsel. On receipt of DCA report, Spencer's counsel, on March 1, 1973, transmitted "preliminary comments" to DCA in the course of which a large number of documents and voluminous statistics were requested of the agency. Counsel wrote: "If you are unable to answer all our questions within three weeks time, we request that your agency make a final determination so this matter may proceed to the next stage." (Record, Tab B-14.)

 On March 14, 1973, DCA notified Spencer that it could not furnish the material requested short of the deadline fixed by his counsel. It accordingly proceeded to a "final" decision *fn4" on his complaint as requested. Based upon a review of the record as it then existed DCA concluded that Spencer had not been discriminated against either by reason of personal bias or institutional racism. In its decision letter, DCA also stated that it would be willing, pursuant to 5 C.F.R. § 713.217, to hold an evidentiary hearing, but because of the "magnitude" of Spencer's request for information, and the expressed desire for either the delivery of the information within three weeks or a final decision, concluded that Spencer did not in fact want a hearing. (Record, Tab B-16.)

 On March 21, 1973, Spencer's counsel, in response to the DCA decision and pursuant to 5 C.F.R. § 713.217 and § 713.218, requested a hearing before an independent Civil Service Commission (CSC) Hearing Examiner at the agency level. (Record, Tab B-17.) However, CSC informally advised DCA that they would not appoint a Hearing Examiner in view of the fact that the complainant, Spencer, had already received a final agency decision. (Record, Tab B-18.) Spencer was advised that he could appeal DCA's decision to the CSC Board of Appeals and Review, pursuant to 5 C.F.R. § 713.231. ...

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