the Treasury, an Executive department, it is not itself an "independent establishment." Thus, the Court concludes that neither ATF nor its subdivisions are a "department, agency, or unit" within the meaning of § 2000e-16, and, accordingly, the defendants who are the heads of ATF and its subdivisions are not proper defendants in this case.
Although this issue has not been faced by many courts, three courts have ruled, though without detailed analysis of the statutory terms "department," "agency," and "unit," that defendants in positions analogous to those of defendants Davis, Murrell, and Feeney were not proper defendants to a Title VII action by a federal employee (or an applicant for federal employment). In Williams v. Mumford, 6 FEP Cases 483, 487 (D.D.C. 1973), Judge Jones of this District held that the director of personnel at the Library of Congress was not a proper defendant. Similarly, in Jones v. Brennan, 401 F. Supp. 622, 627 (N.D. Ga. 1975), Judge Moye held that the Regional Manpower Administrator of the Manpower Administration for Region IV of the Department of Labor was not a proper defendant. Finally, the Court of Appeals for this Circuit, in Hackley v. Roudebush, 171 U.S. App. D.C. 376, 520 F.2d 108, 115 n. 17 (1975), concluded that the Director of the Investigation and Social Security Division of the Veterans Administration, his assistant, and the Assistant Administrator of the VA for Management and Evaluation were all improper defendants. See also Jones v. United States, 376 F. Supp. 13, 14 n. 3 (D.D.C. 1974); Haire v. Calloway, 385 F. Supp. 309, 310 (E.D. Mo. 1974); Brooks v. Brinegar, 391 F. Supp. 710 (W.D. Okla. 1974).
On the basis of these authorities and this Court's analysis of the statutory language, the Court concludes that defendants' interpretation of § 2000e-16(c) is correct. The Court will therefore dismiss the complaint insofar as it states claims against defendant Davis, Murrell, and Feeney. In doing so, however, the Court notes, as did Judge Jones in Williams v. Mumford, supra, that the dismissal as to these defendants in no way impairs the ability of the Court to fashion appropriate relief against the remaining defendant, Secretary Simon, if the Court finds relief to be warranted.
II. Defendant's Motion to Dismiss Such Parts of The Complaint as Allege a Cause of Action Arising From The Nonpromotion of Plaintiff in 1971.
Although the gravamen of the complaint is clearly defendant's failure to promote plaintiff in 1973, plaintiff also asserts that she is entitled to back pay and retroactive promotion to 1971, since she was at that time first denied promotion because of her sex. Defendant argues that the Court has no subject matter jurisdiction to order relief for acts of discrimination prior to the effective date of the EEOA, March 24, 1972, unless a claim based on such discrimination was pending on that date.
Plaintiff's claim that it was not until the 1973 nonpromotion that she became aware that the 1971 nonpromotion was the result of sex discrimination and that the agency, by accepting the complaint for processing, waived its objection to the 1971 claim is thus entirely inapposite, for if the Court does not have subject matter jurisdiction to award relief based on the alleged 1971 discrimination, it matters not whether the agency waived its objection by processing the complaint: Subject matter jurisdiction cannot be waived by the parties. See C. Wright, A. Miller, & E. Cooper, 13 Federal Practice and Procedure § 3522 (1975), and cases cited therein. The law is clear that unless a claim was pending either administratively or judicially at the time the Act took effect, see Womack v. Lynn, 164 U.S. App. D.C. 198, 504 F.2d 267, 269 (1974), the courts have no subject matter jurisdiction over claims of discrimination in federal employment arising prior to March 24, 1972. Jones v. United States, supra, at 15; Thompson v. Link, 386 F. Supp. 897, 899-900 (D. Mo. 1974). Since a claim by plaintiff with respect to the 1971 nonpromotion was not pending on March 24, 1972, the Court has no jurisdiction to award any relief for any discrimination taking place prior to that date. Accordingly, the Court will dismiss those parts of the complaint seeking relief for the alleged 1971 discrimination.
III. The Cross-Motions for Summary Judgment on Whether Plaintiff is Entitled to Back Pay and Retroactive Promotion as a Matter of Law.
The remaining issue before the Court is whether the plaintiff is entitled as a matter of law to the remedy she seeks -- back pay and retroactive promotion.
The defendant, by accepting the findings of the Complaints Examiner, has admitted that the plaintiff suffered discrimination because of her sex, which "prejudiced [her] opportunity for equal consideration in promotion actions." See Exhibit 2, at 18-14, quoted supra.
The Court of Appeals for this circuit has clearly held that the remedy which plaintiff seeks is only available to her if she would have been promoted but for the fact that she was the victim of sex discrimination. Day v. Mathews, 174 U.S. App. D.C. 231, 530 F.2d 1083, 1085 (D.C. Cir. 1976), interpreting 42 U.S.C. § 2000e-5(g) (Supp. III, 1973). Both parties here agree that the "but for" test is applicable to this case; the parties disagree, however, as to how the test should be applied to the facts of this case.
The operation of the selection process by which Mr. McOwen rather than the plaintiff was chosen for the open GS-12 position is undisputed. First, the candidates for promotion were scored by the selection panel on the basis of (1) education, (2) experience, (3) awards, and (4) performance evaluations by the applicant's supervisor. The scores for the four candidates for the 1973 promotion were as follows:
Candidate Evaluation Education Experience Awards Total
M. O. Stephenson 13 1 15 1 30
John M. McOwen 23 2 19 43
Robert G. Parker 26 3 13 39
James W. Young 21 2 10 32
© 1992-2004 VersusLaw Inc.