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July 6, 1978

Roger H. NEELY, Plaintiff,
W. Michael BLUMENTHAL, Secretary of the Treasury, and James A. Conlon, Individually and as Director of the Bureau of Engraving and Printing, and Etheridge Kent, Individually and as Chief, Office of Security, Bureau of Engraving and Printing, Defendants

The opinion of the court was delivered by: SIRICA

The question presented in this case, a federal employment discrimination suit raising related Title VII and constitutionally-based damage claims, is the scope of the exclusivity rule laid down in Brown v. General Services Administration, 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976). In particular, the question is whether Brown, In addition to Preempting non-Title VII employment discrimination claims brought against federal employers in their official capacities, also Extinguishes Ancillary damage claims that are based on Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) theories and are directed at federal officers in their individual capacities. Consideration of the precise rationale underlying Brown convinces the Court that Title VII does not bar related damage claims brought against individual officers. Yet a proper regard for the doctrine of implication underlying judicially-created Bivens actions leads the Court to conclude that no damage action need be implied where Title VII serves to vindicate the same rights sought to be protected by the damage claim.

I. Background Facts.

 The particulars of this controversy, as alleged, *fn1" are straightforward. A sketch of the material allegations contained in plaintiff's complaint reveals that beginning in 1968 plaintiff took a position as a security guard with the Bureau of Engraving and Printing (the Bureau), a unit of the Department of the Treasury. Plaintiff continued working for the Bureau as a GS-4 and later as a GS-5 level security officer until the agency removed him for cause effective July 20, 1971. *fn2" The stated reason for the disciplinary action was repeated acts of misconduct in the course of plaintiff's employment.

 Plaintiff in his complaint, however, paints a far different picture of his job performance and the reasons why the agency removed him. Commencing in early 1969, plaintiff alleges, he became aware that the Bureau was failing to provide agency employees with equal employment opportunities irrespective of their race. Plaintiff perceived that blacks held an inordinately small number of the higher grade jobs within the various departments of the Bureau. This was so even though the great majority of Bureau workers were black.

 Along the same lines, plaintiff became aware that just as blacks held a disproportionately small number of the upper level posts, black employees enjoyed disproportionately fewer of the employment-related benefits and privileges that accompanied higher grade employment at the agency. In addition, plaintiff perceived that the structure and operation of the Bureau's Equal Employment Opportunity (EEO) program did not fairly advance the interests of black workers because interested members of the agency's Employees' Committees lacked a meaningful voice in EEO affairs.

 Moved by these concerns, plaintiff avers, he assumed the role of an advocate in order to instigate changes in the Bureau's operations aimed at improving the opportunities available to fellow employees in the lower grades who, it is claimed, were predominantly black. Plaintiff's methods were blunt and to the point. Regarding the preferential assignment of parking privileges, plaintiff confronted the management of the agency with proposals to reform the existing policy for distributing parking spaces. When these efforts proved to be unavailing, plaintiff decided to test the policy directly by breaching parking rules with an apparent view towards finding out if the rules were valid. The agency responded by reprimanding plaintiff for violation of applicable parking regulations. Plaintiff claims that this response constituted a reprisal against him.

 Similarly, regarding inadequacies in the operation of the EEO program, plaintiff confronted Bureau authorities with suggestions designed to spur changes in prevailing EEO policy. On one occasion, plaintiff spoke up at an EEO meeting to express his ideas on the issue but was met with opposition by some of the EEO officers in attendance. This opposition led to what was apparently a rancorous exchange among plaintiff and the Bureau officials because the agency later cited him for misconduct as a result of his behavior. Plaintiff claims that this reprimand was unwarranted.

 At another EEO meeting, plaintiff attempted to convince an attending officer of perceived deficiencies in the EEO program. The circumstances behind this discussion, too, were apparently of a character that the agency found objectionable because the Bureau subsequently relied on the exchange as one of the grounds for plaintiff's termination. Plaintiff claims that his conduct was at all times undertaken in good faith.

 On numerous other occasions, plaintiff came into conflict with his superiors over unspecified matters. Plaintiff conceived these disputes to be harassment and discrimination. He did not, however, attempt to redress his grievances by petitioning the wrongdoers as agency policy required. Instead, he took his concerns directly to his supervisors' superior who, over plaintiff's objections, decided to air the matter by holding a meeting with all concerned parties in attendance. Plaintiff then refused to participate on that basis because he felt he could not express his grievances to Bureau officials in the presence of his immediate supervisors. The agency later advanced this refusal in support of plaintiff's termination.

 Plaintiff contested his termination as racially tainted. After unsuccessfully pursuing available avenues of relief within the agency and Civil Service Commission, plaintiff brought his challenge to court. Count I of plaintiff's complaint alleges violations of rights of advocacy guaranteed by Title VII of the Amended Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (Supp. V 1975). In particular, plaintiff claims that the disciplinary action taken against him is racially tainted in violation of Title VII because it stems from his active and vocal opposition to employment practices at the Bureau that disproportionately affected black workers. Plaintiff names the head of his Department as the defendant with respect to Count I and for relief seeks various injunctive remedies including reinstatement, back pay and an order restraining agency authorities from depriving plaintiff of his right to discuss and advocate changes in EEO policy at the Bureau.

 Count II of plaintiff's complaint similarly alleges infringement of rights of advocacy secured to plaintiff. Like Count I, Count II challenges the disciplinary action taken against plaintiff as unlawfully punishing protected conduct on behalf of fellow minority employees. But unlike plaintiff's first count, which is based on a statutory anti-discrimination provision that has been construed to protect advocacy in the employment context, plaintiff's second charge is founded on the more primary protections of free speech afforded by the first amendment to the Constitution. And unlike Count I, Count II names in their individual capacities *fn3" two agency officers who played a part in plaintiff's removal and seeks to recover money damages from them based on a Bivens theory.

 Defendants have moved for an order dismissing plaintiff's constitutionally-based damage claim. Defendants' principal line of attack is the exclusivity rule established in Brown v. General Services Administration, 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976). Brown held that the remedies for discrimination in federal employment provided in Title VII are the exclusive means of redress against the federal government. Consequently, the plaintiff in that case was barred from proceeding against the federal government on Any anti-discrimination theory because he had not complied with the procedural requirements of Title VII.

 Defendants read Brown expansively. Implicit in their motion is the contention that Brown not only preempts non-Title VII avenues of relief against the federal government (official remedies), but also forecloses remedies available against individual officers (individual remedies) of the kind sought by plaintiff here in Count II of his complaint. Defendants' position seems to be that if an employment practice is susceptible to being challenged as discriminatory under Title VII, it can only be challenged under Title VII and on no other basis regardless of the theory underlying the alternative claim and irrespective of the kinds of remedies being sought. An appraisal of the merits of this argument requires a close reading of the Brown decision with special attention to the rationale developed by the Court to shape its exclusivity rule.

 The judicial remedies available to federal employees under Title VII to redress employment discrimination are encompassing. Section 706(g) of the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 259, 42 U.S.C. § 2000e-5(g) (1970), as made applicable to federal employees by section 11 of the Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, 86 Stat. 111, 42 U.S.C. § 2000e-16(d) (Supp. V 1975), affords federal sector employees a full complement of remedial orders against offending agency employers, including general preventive and affirmative injunctive relief, reinstatement, back pay, retroactive promotion and the catch-all remedy of "any other equitable relief as the court deems appropriate." There is, however, one important exception to this broad remedial scheme. Section 706(g) of Title VII does not allow aggrieved employees to recover damages as redress for proscribed conduct. *fn4"

 In the private sector, the omission of a damage remedy from Title VII is of no great consequence. This is because in the context of private employment Title VII poses no obstacle to suits based on other anti-discrimination provisions. As stated by the Supreme Court in Johnson v. Railway Express Agency, 421 U.S. 454, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975), "Despite Title VII's range and design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other remedies he possesses in his search for relief." Id. at 459, 95 S. Ct. at 1719. And as also stated by the Supreme Court, Congress made clear "that the remedies available to the individual under Title VII are co-extensive with the individual's right to sue under the provisions of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and that the two procedures augment each other and are not mutually exclusive." Id. Section 1981 generally ...

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