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MCNUTT v. HILLS

January 31, 1977

WILLIAM F. McNUTT, Plaintiff,
v.
CARLA A. HILLS, et al., Defendants



The opinion of the court was delivered by: RICHEY

 OF UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY

 In this civil action, plaintiff William F. McNutt charges the governmental defendants with unlawful discrimination against, and a failure to meet affirmative obligations toward, physically-handicapped employees of the United States Department of Housing and Urban Development (HUD), in violation of certain federal statutes, regulations, and guidelines. *fn1" On his own behalf, McNutt, a HUD employee, seeks declaratory and injunctive relief and back pay. He also seeks declaratory and injunctive relief to be applicable on a department-wide level. *fn2"

 On February 4, 1976, the parties submitted the administrative record in this case to the Court and stipulated "that no further factual development is necessary [and] that this action may be decided by the court on the basis of the administrative record as filed." Subsequently, the government filed a motion to dismiss, or in the alternative, for summary judgment, and plaintiff filed a cross-motion for summary judgment. Oral argument on those motions having been heard, the motions are now before the Court and ripe for decision.

 I. FACTUAL BACKGROUND

 Plaintiff McNutt is legally blind, a victim of the disease retinitis pigmentosa. Despite his physical handicap, plaintiff earned a college degree and passed the Federal Service Entrance Examination Management Intern test in 1966. He was hired by HUD in June 1967 as an urban intern, at a GS-7 level. Upon completion of his one-year internship, plaintiff was promoted to the GS-9 level and became a permanent HUD employee. After some difficulty obtaining a placement assignment, he was placed in the Office of Congressional Services for Model Cities; he was not, however, formally transferred to that office and, as a result, his immediate supervisors did not have the authority to evaluate his work for purposes of a promotion. In June 1969 he received a step increase to GS-9, step 2. Shortly thereafter, plaintiff suffered what he characterizes as "the most blatant discrimination of his career at HUD," *fn3" arising out of a statement made by the Director of the Office of Congressional Services which, as the government concedes, was "inexcusable." *fn4" Subsequently, in October or November of 1969, plaintiff was transferred on less than twenty-four hours' notice from the Office of Congressional Services to the Administrative Division of the Model Cities Administration. Although he was dissatisfied with the series of administrative positions he held in the Administrative Division and regularly sought reassignment, he received promotions to GS-11 in March 1970 and to GS-12 in April 1971. He later received step increases, two in 1972 and one in 1973.

 When plaintiff became eligible for promotion to GS-13 in April 1972, HUD was operating under a promotions freeze. The freeze ended in June 1972, and plaintiff increased his efforts to obtain a promotion. He was unsuccessful over the course of the following year and, pursuant to HUD procedures, filed an informal grievance in the summer of 1973. After efforts at informal resolution failed, plaintiff filed a formal grievance on March 4, 1974, with the Assistant Secretary for Community Planning and Development at HUD. *fn5" Plaintiff alleged, inter alia, that:

 
Executive Orders, Equal Employment Opportunity laws, CSC directives, and Departmental policy statements ostensibly designed to establish the mechanisms, strategies and commitments to make EEO for the Physically Handicapped a reality have been abandoned here in HUD. . . . [In] my case it goes beyond the aspects of a deliberately inoperative policy or program for, in reality, management's distorted perception, lack of acceptance and insecurities regarding my handicap have unjustly relegated me to the professional and social status of "misfit." *fn6"

 Plaintiff specifically requested retroactive promotion from July 1, 1972, and reassignment to a more challenging job which would also provide an opportunity for career development and advancement. On August 5 and 6, 1974, a Grievance Examiner conducted a formal adjudicatory hearing on plaintiff's grievance. Two months later, the Grievance Examiner issued an opinion in which he found that HUD had discriminated against the plaintiff because of his physical handicap:

 
It has not so much been overt and hostile discrimination, but rather a failure by HUD to meet its obligations under statutes, policies, statements, the Federal Personnel Manual and other documents which relate to a Federal agencies [sic] responsibility toward handicapped employees. *fn7"

 The Grievance Examiner recommended that plaintiff be promoted to GS-13, retroactively from the date of the filing of his formal grievance, March 4, 1974. The Examiner also recommended that HUD take steps to insure that plaintiff be provided with readers and special equipment for visually handicapped employees. Concerning department-wide policy, the Examiner wrote:

 
[The Rehabilitation Act of 1973] requires the agencies to submit an affirmative action program to the Civil Service Commission for the hiring, placement, and advancement of handicapped individuals in that department or agency. HUD's submission was made in March, 1974. Apart from this submission there is in effect no affirmative action program within HUD. . . . What is needed is a candid introspection by HUD and then the establishment of an honest affirmative action program which amounts to more than rhetoric and required submissions to the Civil Service Commission. *fn8"

 The Grievance Officer charged with reviewing the Examiner's findings, the aforementioned Assistant Secretary for Community Planning and Development, declined initially to issue a decision in the case; instead, on October 18, 1974, he transmitted the grievance file to the Under Secretary of HUD, in light of "the implications as to precedents set for other handicapped persons, and policy that may be set for the Department by the decision rendered." *fn9" On October 27, 1974, plaintiff was promoted to the position of Program Assistant in the Federal Insurance Administration of HUD. He accepted the promotion with the understanding that his acceptance would not in any way affect his rights under the grievance proceeding. *fn10" On November 5, 1974, the Under Secretary returned plaintiff's file to the Assistant Secretary for "final disposition," and indicated in a memorandum to the Assistant Secretary that the promotion accorded plaintiff the relief sought to the fullest extent permitted by law. *fn11" A final disposition was prepared and, on November 17, 1974, the Under Secretary issued findings consistent with the memorandum of November 5, 1974. Specifically, the Under Secretary found that "the relief you have sought has been granted to the fullest extent justifiable." Accompanying this finding was the conclusion that "there is no authority under applicable statutory or regulatory provisions for retroactive pay in a grievance case. . . . Moreover, I do not find that your request for retroactive pay is justified." As to those aspects of the Hearing Examiner's opinion concerning department-wide affirmative action for the physically handicapped, the Under Secretary noted that "these issues were not part of your original grievance and . . . I do not find them germane to the resolution of this case." The Under Secretary did note, however, that he had instructed the Assistant Secretary for Programs for the Elderly and the Handicapped to "look into the Department's policies . . . and inform me of any suggestions she may have." *fn12"

 The instant suit was filed on August 28, 1975. Plaintiff seeks a declaratory judgment that he was discriminated against by the defendants, an injunction prohibiting future discrimination, retroactive promotion, back pay, and an order requiring defendants to prepare and implement an affirmative action program for the physically handicapped at HUD.

 II. APPLICABLE STATUTES AND REGULATIONS

 In alleging that the government has discriminated unlawfully against him and others who are physically handicapped, plaintiff relies on a variety of overlapping federal statutes, regulations, and personnel directives. A brief description of those provisions is set forth by the Court in this section.

 Congress first acted to combat federal employment discrimination against the physically handicapped in a 1948 statute:

 
The President may prescribe rules which shall prohibit, as nearly as conditions of good administration warrant, discrimination because of physical handicap in an Executive agency or in the competitive service with respect to a position the duties of which . . . can be performed efficiently by an individual with a physical handicap. . . .

 5 U.S.C. § 7153 (1970). Civil Service Commission regulations enacted in 1969 pursuant to this statutory authority *fn13" provide, in pertinent part:

 
In determining the merit and fitness of a person for competitive appointment . . . an appointing officer shall not discriminate on the basis of . . . a physical handicap with respect to any position the duties of which may be efficiently performed by a person with the physical handicap.

 5 C.F.R. § 713.401 (1976).

 In 1969, pursuant to 5 U.S.C. § 7153 and various presidential policy statements, *fn14" the Civil Service Commission (CSC) also formulated the original version of its Selective Placement Program for the Physically Handicapped, which appears in its present form in the Federal Personnel Manual (FPM), ch. 306, subch. 4 (1969). Federal selective placement programs are defined by the CSC as "organized action plans and procedures developed . . . [to] provide the framework for Federal agency implementation of law and executive branch policy on employment and utilization of the handicapped in the Federal civil service." The programs are designed to emphasize "selective placement (the careful matching of the abilities of the handicapped persons with the duties of particular positions) and personnel management practices which provide continuing accommodation to handicapped personnel after initial employment." Id., subch. 1, at 306-3. The CSC places the burden upon agency heads to assure overall responsibility for selective placement programs in their respective agencies. Id. at 306-4. Agency programs are to be run, according to the Manual, by an in-house coordinator, but the program is to receive the "full cooperation of the entire management team down to and including the firstline supervisor." Id., subch. 3, at 306-9. The selective placement program specifically for the physically handicapped requires agency coordinators to provide the following types of assistance, inter alia, as needed by physically handicapped employees: (1) placement assistance within the agency, including referral to subordinate personnel or to supervisors; (2) work site modification to meet the special needs of the employee; and (3) job modification, including the reengineering of positions in accordance with the CSC's Maximum Utilization of Skills and Training (MUST) principle. Id., subch. 4, at 306-14.

 In 1973, Congress took action again to combat federal employment discrimination against the physically handicapped by enacting § 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 (Supp. III 1973). Section 501's legislative history indicates that Congress was concerned that "despite the Civil Service Commission's experience and actions in this area, Federal employment policies with regard to handicapped individuals [continue] to be found wanting." S. Rep. No. 93-318, 93d Cong., 1st Sess. 49 (1973). Accordingly, Congress established, in § 501(a) of the Act, 29 U.S.C. § 791(a), the Interagency Committee on Handicapped Employees [ICHE]. In § 501(b), 29 U.S.C. § 791(b), Congress directed each agency of the executive branch to prepare and submit to the ICHE and the CSC "an affirmative action program plan for the hiring, placement, and advancement opportunities for handicapped individuals."

 As Congress' most recent effort in the field, § 501 was obviously designed to increase agencies' responsibilities toward physically handicapped employees. By requiring "the establishment of comprehensive affirmative action plans and annual reports," the Act obviously serves, in the CSC's words, "to expand the responsibilities of agencies in managing and implementing their [selective placement] programs." FPM Letter No. 306-5 (Jan. 28, 1974).

 III. JURISDICTION AND THE DEFENSE OF SOVEREIGN IMMUNITY

 The parties, both in their memoranda and at oral argument, have focused much of their analysis on the difficult questions of whether plaintiff has stated a cause of action and whether the Court has jurisdiction over any such cause of action. Necessarily, much of the parties' analysis has concerned the applicability of the doctrine of sovereign immunity to this case. For the reasons set forth below, the Court concludes that jurisdiction and a ...


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