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BROWN v. MARSH

May 12, 1988

James E. Brown, Plaintiff,
v.
John O. Marsh, Secretary of the Army, Defendant


Charles R. Richey, United States District Judge.


The opinion of the court was delivered by: RICHEY

INTRODUCTION

 The genesis of this case was plaintiff's 1975 administrative complaint charging that he had been systematically denied promotions and subjected to unlawful retaliation for filing previous discrimination complaints. After pursuing his claim at various administrative and judicial levels, plaintiff seeks to enforce an Equal Employment Opportunity Commission report finding in his favor. He has moved for partial summary judgment on this theory, and, after carefully considering the legal memoranda, the arguments advanced in open court, and the underlying law, the Court must grant plaintiff's motion.

 BACKGROUND

 The facts of this case are not in dispute. In 1977, the Army issued a final decision rejecting plaintiff's complaint, and he appealed. *fn1" In 1981, the Equal Employment Opportunity Commission ("EEOC") remanded a portion of plaintiff's complaint for further investigation and analysis. *fn2" Because one of the alleged discriminators had become the Administrator of the Army's Civilian Appellate Review Agency, the Army did not itself conduct the review but referred plaintiff's complaint back to the EEOC for investigation. Plaintiff's Exhibit 2 (Letter from W. Gibson to Director, Office of Field Services, Feb. 17, 1981).

 Accordingly, the Army and the EEOC entered into a Memorandum of Understanding ("MOU") about the conduct of the EEOC investigation of plaintiff's complaint. See 29 C.F.R. § 1613.216(c). In pertinent part, the MOU provided:

 
Upon conclusion of the investigation, the District Director of the EEOC Office which investigated the complaint will forward the investigative file to the Agency to continue processing in accordance with 29 C.F.R. § 1613.217 through § 1613.222. Included in the investigative file will be a recommendation as to the disposition of the complaint. This recommendation will be signed by the District Director of the EEOC Office which conducted the investigation.
 
Upon receipt of the investigative file and recommended finding from EEOC, the Agency will resume responsibility for processing the complaint pursuant to 29 C.F.R. § 1613.217 through 1613.222, subject to the following additional responsibilities and clarifying instructions:
 
a. The Agency will perform all of its responsibility under 29 C.F.R. § 1613.217 (a) and (b) within 30 days following the day on which the investigative file and recommended disposition are received from the EEOC District Office. If, on the 31st day following the receipt of the file, the Agency has neither entered into a written adjustment of the complaint nor notified the complainant in writing of its proposed disposition, the Agency will adopt EEOC's recommended disposition as its proposed disposition of the complaint. The Agency will promptly notify the complainant of the proposed disposition and of his/her rights under 29 C.F.R. § 1613.217(b).

 Plaintiff's Exhibit 3, § B, para. 3, § C, para. 5(a).

 It is the timing and character of defendant's actions that are at issue in this case. On October 31, 1985, the EEOC issued its "Report of Supplemental Investigation," which found in plaintiff's favor and recommended his retroactive promotion with full backpay and other appropriate relief. Plaintiff's Exhibit 1. The Report was accompanied by a cover letter signed by an agent for the EEOC's District Director. Defendant received this Report on or before November 4, 1985. Plaintiff's Exhibit 6. On December 9, 1985 -- 39 days after the Report was sent and 35 days after defendant received it -- defendant returned the Report to the EEOC because it was not signed by the EEOC's District Director, as required by the Memorandum of Understanding. Defendant's Opposition to Plaintiff's Motion for Partial Summary Judgment, Exhibit ("Defendant's Exhibit") A.

 BECAUSE THE ARMY'S REJECTION OF THE EEOC DECISION WAS UNTIMELY, PLAINTIFF IS ENTITLED TO PARTIAL SUMMARY JUDGMENT.

 Defendant admits that he received the EEOC's "Supplemental Report" on plaintiff's complaint on November 4, 1985. He admits that the Memorandum of Understanding gave him thirty days in which to "enter into a written adjustment of the complaint" or inform plaintiff that he had rejected the EEOC decision; he also admits, as he must, that the Memorandum of Understanding clearly states that he would be deemed to have adopted the EEOC decision by default if he failed to take these specified actions in a timely fashion. Memorandum of Understanding, Plaintiff's Exhibit 3, § C, para. 5(a); see also 29 C.F.R. § 1613.220(d). He further admits that his only action was to return the "Supplemental Report" to the EEOC on December 9, 1985, more than thirty days after he received it.

 In light of the clear language of the Memorandum of Understanding, these facts would seem inescapably to lead to the conclusion that defendant's action was untimely. Defendant, however, argues that the Memorandum of Understanding's requirements apply only if the EEOC recommendation complied in all particulars with the Memorandum of Understanding. Because the District Director had not signed the October 31, 1985, "Supplemental Report," as the Memorandum of Understanding contemplated, defendant argues ...


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