The opinion of the court was delivered by: SIRICA
The above entitled action is before the Court on the defendants' Motion To Dismiss, Or In The Alternative, For Summary Judgment, to which plaintiff filed an opposition and which was the subject of oral argument before the Court.
Plaintiff is a black, female, GS-5 payroll clerk for the Payroll Section, Accounting Operations Division, Office of Financial Systems and Services, United States Department of Housing and Urban Development.
On February 2, 1972, plaintiff was denied a promotion to a position of GS-6 Payroll Clerk when a Caucasian female was chosen to fill the position. As a result, plaintiff filed a formal complaint of racial discrimination on March 1, 1972, stating that she had been passed over at least three times for promotion to the GS-6 level in favor of whites with less experience than she. Plaintiff alleged that she had been discriminated against by her supervisor, that the merit staffing procedures had not been followed, and that there was a pattern and practice of racial discrimination in her unit and in the department.
After a failure of plaintiff's Equal Employment Counselor to resolve the complaint through informal means, an investigation of the allegations was conducted from May through August of 1972 by the Office of the Inspector General of the agency, resulting in a report of the investigation being furnished to the EEO Officer. Further attempts to resolve the matter informally proved fruitless and plaintiff requested a formal hearing which commenced on January 30, 1973. On that date the Civil Service Commission hearing examiner ruled that the testimony of certain witnesses and certain documents which counsel for the plaintiff wished to introduce into evidence at the hearing were inadmissable. Upon this ruling, counsel for the plaintiff informed the hearing examiner that he was not prepared to go forward with the hearing and requested a postponement. The hearing examiner denied counsel's request for a postponenment, terminated the hearing on the grounds of plaintiff's failure to prosecute, and remanded the case to the agency for final decision pursuant to Commission regulations, 5 C.F.R. § 713.221.
On August 7, 1973, the agency issued its final decision finding that the plaintiff had not been discriminated against with regard to three GS-6 promotions which took place during the period of February 1968 to February 1972.
Plaintiff filed a petition for rehearing with the Civil Service Commission's Board of Appeals and Review on September 13, 1973. This final appellate body within the Commission rendered its decision upholding the agency's decision on November 6, 1973. A letter was sent to plaintiff and her attorney, dated November 7, 1973, notifying plaintiff of the Board's decision and stating that, if she was dissatisfied with the decision, she could file a civil action in an appropriate U.S. District Court within thirty days of the receipt of the letter.
The complaint at issue here was filed in the U.S. District Court for the District of Columbia on December 18, 1973, forty-two days after notice of the Board's decision was sent to the plaintiff.
Defendants' Motion to Dismiss
In the original motion to dismiss, defendants contended that the Court lacks jurisdiction to hear this case under the Equal Employment Opportunity Act of 1972, Section 717(c), since that act was not retroactive and the alleged acts of discrimination occurred prior to the effective date of the Act. However, as defendants admit in their supplemental memorandum in support of their motion to dismiss, it is now settled, at least in this circuit, that the EEO Act of 1972, Section 717(c) applies retroactively to any case in which proceedings were pending, either administratively or judicially, as of the effective date of the Act. Grubbs v. Butz, 169 U.S. App. D.C. 82, 514 F.2d 1323 (D.C. Cir. 1975); Womack v. Lynn, 164 U.S. App. D.C. 198, 504 F.2d 267 (Cir. 1974).
Since, in this case, plaintiff filed a complaint of racial discrimination with the proper authority within the agency on March 1, 1972 and the matter was pending as of the effective date of the Act, March 24, 1972, this Court would properly have jurisdiction under the EEO Act of 1972.
Defendants also argue that the Court lacks jurisdiction since plaintiff failed to file her complaint in the district court within the proper time required for such action, that is, within thirty days of the final agency decision, when she was given proper and timely ...