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SCOTT v. WEINBERGER

January 21, 1976

James F. Scott and Gloria J. Martin, Plaintiffs,
v.
Casper W. Weinberger et al., Defendants



The opinion of the court was delivered by: SIRICA

 The defendants in this case have filed a motion to dismiss or in the alternative for summary judgment and plaintiffs have filed a cross-motion for summary judgment, which motions are presently before the Court.

 FACTS

 This is an employment discrimination case in which plaintiffs Scott, a black male, and Martin, a black female, allege that they were discriminated against on the basis of race when they were hired by St. Elizabeths Hospital as dental assistants at the grade GS-4 level, while all similarly situated white dental assistants were hired at the grade GS-5 level.

 The material facts are not in dispute.

 Plaintiff Scott was hired as a dental assistant, GS-4, on February 25, 1961, and continues to be employed by the hospital, presently at the GS-5, Step 7 level. Plaintiff Martin was hired as a dental assistant, GS-4, on April 11, 1969, and was promoted to a GS-5 position shortly before she terminated her employment on June 15, 1970.

 On March 20, 1972, the Office of the Director of Equal Employment Opportunity, HEW, issued a decision in the complaint case of Cox v. Health Services and Mental Health Administration (Administrative Record pp. 23-27) finding that Mrs. Cox, a black co-worker of plaintiffs here, had been discriminated against when she was hired as a dental assistant at the GS-4 level, while whites were hired at GS-5.

 As a part of that decision, the HEW Director of Equal Opportunity sustained and accepted the conclusions and analysis of the Health Services and Mental Health Administration's proposed disposition (Defendants' Statement of Material Facts as to Which There is No Genuine Issue, p. 2) which concluded that there had been a pattern of racial discrimination in the hiring of dental assistants at St. Elizabeths Hospital and specifically found that plaintiffs Scott and Martin, in addition to Mrs. Cox, had been victims of such discrimination. (Administrative Record, pp. 29-33).

 In May of 1972, Mrs. Cox informed Scott and Martin of the favorable decision that she had received in her case and plaintiffs each filed separate complaints of discrimination on July 3, 1972. The Agency dismissed their complaints as untimely since they dealt with hirings which occurred over eleven (in the case of Scott) and three (in the case of Martin) years before the respective complaints were filed. The Civil Service Commission's Board of Appeals and Review affirmed the Agency action and notified plaintiffs of their right to file a complaint in the U.S. District Court within thirty days.

 A. DEFENDANTS' MOTION TO DISMISS

 The government argues that the Court lacks jurisdiction to hear this case (1) since the EEO Act of 1972 does not apply retroactively to allegations of discrimination which occurred prior to the effective date of the Act and (2) since plaintiffs failed to name the Commissioners of the CSC as defendants.

 The first argument is without merit. It is now well settled, at least in this Circuit, that the EEO Act of 1972 is retroactive to apply to alleged acts of discrimination which occurred prior to the effective date of the Act and pending administratively on or after the effective date of the Act. Grubbs v. Butz, 169 U.S. App. D.C. 82, 514 F.2d 1323 (1975); Womack v. Lynn, 164 U.S. App. D.C. 198, 504 F.2d 267 (1974). Since plaintiffs both filed their administrative complaints alleging discrimination on July 3, 1972, which was subsequent to the effective date of the Act, this Court properly has jurisdiction.

 Defendants' second argument also falters. Defendants claim that plaintiffs' failure to name the individual Commissioners of the CSC as defendants deprives the Court of jurisdiction. The District of Columbia Circuit has also addressed this question, ruling in Hackley v. Roudebush, 171 U.S. App. D.C. 376, 520 F.2d 108 (1975) that "The only proper defendant in a Title VII suit . . . is the 'head of the department, agency, or unit' in which the allegedly discriminatory acts transpired." 520 F.2d at 115. Since plaintiffs have named the Secretary of the Department of Health Education and Welfare, the head of the department of the government in which the alleged acts of discrimination took place, as ...


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