United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2005 Decided June 3, 2005
No. 04-5267
ALFRIEDA S. CONNOR SCOTT, PERSONAL REPRESENTATIVE OF
THE ESTATE OF HAROLD CONNOR,
APPELLANT
v.
MICHAEL JOHANNS, SECRETARY OF AGRICULTURE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01560)
Charles W. Day, Jr. argued the cause for appellant. With
him on the briefs was Joseph D. Gebhardt.
Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Peter D. Keisler, Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney, and Marleigh D. Dover, Special
Counsel.
Before: GINSBURG, Chief Judge, and TATEL and GARLAND,
Circuit Judges.
2
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Under Title VII of the Civil Rights
Act of 1964, federal employees dissatisfied with the
administrative resolution of their discrimination complaints may
file suit in federal court. In this case, we must decide whether
an employee who secures a final administrative disposition
finding discrimination but who is dissatisfied with the remedy
may challenge only the remedy in the federal court action.
Answering no, the district court held that the employee must
first prove liability, and we agree.
I.
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq., provides that before filing suit, an
individual alleging that a federal agency engaged in employment
discrimination must seek administrative adjudication of the
claim. See generally 42 U.S.C. § 2000e-16. Under EEOC
regulations promulgated pursuant to Title VII, the employee (or
job applicant) files a complaint with the employing agency. 29
C.F.R. § 1614.106(a). The employing agency then conducts an
investigation and, if the employee so requests, refers the matter
to an EEOC Administrative Judge (“AJ”) for a hearing. Id. §§
1614.106(e)(2), 1614.108-09. After the employing agency
investigates or, if the employee requested a hearing, after the AJ
issues a decision, the employing agency must “take final
action.” Id. § 1614.110. If the employee never requested a
hearing, the employing agency’s final action must “consist of
findings . . . on the merits of each issue . . . and, when
discrimination is found, appropriate remedies and relief.” Id. §
1614.110(b). In cases where the employee requested a hearing,
the employing agency’s “final order shall notify the complainant
whether or not the agency will fully implement the [AJ’s]
decision.” Id. § 1614.110(a). Complainants dissatisfied with an
employing agency’s final action, whether or not issued after an
3
AJ decision, have two options: they may either file suit or
appeal to the EEOC. See id. § 1614.110. If a complainant takes
the latter course, EEOC’s Office of Federal Operations (“OFO”)
reviews the record, supplements it if necessary, and then issues
a written decision. Id. § 1614.404-05. Like the employing
agency’s final action, the OFO’s decision amounts to a final
disposition, triggering the right to sue. Id. § 1614.405(b).
This case began in 1997 when Harold Connor and several
other African-American employees of the Department of
Agriculture (“DOA”) filed a complaint alleging (among other
things) denial of promotions on account of race. DOA referred
the complaint to an AJ who found two claims meritorious:
Connor’s and that of another employee, Dr. Clifford Herron.
After holding a hearing on remedy, the AJ awarded Connor and
Herron GS-15 positions, back pay, attorneys’ fees, and $10,000
each in compensatory damages. In separate final agency
actions—one each for Connor and Herron—DOA accepted the
findings of discrimination, as well as the remedies the AJ had
awarded.
Following additional administrative proceedings not
relevant to the issue now before us, Herron filed suit in the U.S.
District Court for the District of Columbia challenging only the
sufficiency of his $10,000 compensatory award. Although
Connor is now deceased, Alfrieda Connor Scott, his former wife
and the personal representative of his estate, filed a similar suit.
Addressing Herron’s suit first, the district court held that when
a final administrative disposition finds discrimination and orders
a remedy, the employee may not file suit challenging only the
remedial award. Herron v. Veneman, 305 F. Supp. 2d 64, 74-79
(D.D.C. 2004). Instead, an employee seeking a greater award
must start from scratch, i.e., the employee must file a Title VII
suit and prove liability along with entitlement to relief. Id.
Given that Herron requested trial on damages only, the court
concluded he failed to state a claim. Id. at 74, 79. Later,
4
observing that Scott’s claim raised “the same legal issues” as
Herron’s, the district court dismissed it “for the reasons stated
in the court’s . . . order in Herron v. Veneman.” Scott v.
Veneman, No. 03-1560 (D.D.C. June 18, 2004).
Scott now appeals. Because the only issue she presents is
legal, our review is de novo. Second Amendment Found. v. U.S.
Conference of Mayors, 274 F.3d 521, 523 (D.C. Cir. 2001).
II.
As the district court explained, two types of civil actions
may arise from Title VII’s federal-sector administrative process.
See Herron, 305 F. Supp. 2d at 74-75. First, complainants who
prevail in the administrative process but who—for whatever
reason—fail to receive their promised remedy, may sue to
enforce the final administrative disposition. See, e.g., Wilson v.
Pena, 79 F.3d 154 (D.C. Cir. 1996) (reversing dismissal of
action contending that employing agency used improper
performance rating in calculating back pay owed pursuant to
EEOC finding of discrimination); Houseton v. Nimmo, 670 F.2d
1375 (9th Cir. 1982) (affirming decision requiring employing
agency to provide job training awarded in 16-month-old
administrative disposition). In such enforcement actions, the
court reviews neither the discrimination finding nor the remedy
imposed, examining instead only whether the employing agency
has complied with the administrative disposition. See Moore v.
Devine, 780 F.2d 1559, 1563 (11th Cir. 1986). Second, a
complainant “aggrieved by the final disposition of his
complaint, or by the failure to take final action on his complaint,
may file a civil action” under Title VII. 42 U.S.C. § 2000e-
16(c). In a Title VII suit brought after a final administrative
disposition finding no discrimination, the district court considers
the discrimination claim de novo. Chandler v. Roudebush, 425
U.S. 840 (1976).
Challenging only the compensatory damages award, Scott
5
seeks neither to enforce an administrative disposition nor to
retry an unsuccessful discrimination claim. Her suit therefore
raises this question: May a court review a final administrative
disposition’s remedial award without reviewing the disposition’s
underlying finding of liability? According to Title VII’s plain
language, the answer is no.
Because Scott takes issue with a final administrative
disposition—though just a portion of it—her claim arises under
42 U.S.C. § 2000e-16(c), the provision authorizing a cause of
action for a party “aggrieved by [a] final disposition.” Section
2000e-16(c) provides that such “an employee or applicant for
employment . . . may file a civil action as provided in section
2000e-5,” which contains provisions governing actions against
private employers, states, and units of local government.
Section 2000e-16(d) further specifies that “[t]he provisions of
section 2000e-5(f) through (k) of this title, as applicable, shall
govern” Title VII suits against federal agencies. (The Supreme
Court has explained that “[t]he most natural reading of the
phrase ‘as applicable’ in [section 2000e-16(d)] is that it merely
reflects the inapplicability of provisions in [section 2000e-5(f)
through (k)] detailing the enforcement responsibilities of the
EEOC and the Attorney General.” Chandler, 425 U.S. at 848.)
Critical to the question before us, section 2000e-5(g), one
of the provisions applied to federal sector suits by sections
2000e-16(c) and (d), states: “ [i]f the court finds that the
respondent has intentionally engaged in or is intentionally
engaging in an unlawful employment practice,” it may order
various specified remedies, id. § 2000e-5(g)(1) (emphasis
added). Thus, in a federal-sector Title VII case, any remedial
order must rest on judicial findings of liability, and nothing in
the statute’s language suggests that such findings are
unnecessary in cases where a final administrative disposition has
already found discrimination and awarded relief. This rule,
moreover, applies to Scott’s claim even though section 2000e-
6
5(g) says nothing about compensatory damages, for the statute
authorizing such damages indicates that section 2000e-5(g)’s
requirement of a judicial finding of liability applies to them as
well. See 42 U.S.C. § 1981a(a)(1) (making compensatory
damages available “in addition to” remedies mentioned in
section 2000e-5(g)).
The Supreme Court’s decision in Chandler v. Roudebush,
425 U.S. 840, reinforces this conclusion. Explaining that federal
courts should not defer to final administrative determinations
finding no discrimination, the Court observed that pursuant to
Federal Rule of Evidence 803(8)(c), “[p]rior administrative
findings made with respect to an employment discrimination
claim may, of course, be admitted as evidence at a federal-sector
trial de novo.” 425 U.S. at 863 n.39. Notice that the Court drew
no distinction between discrimination claims resolved in favor
of the complainant and those resolved against the complainant.
In all cases, administrative findings may “be admitted as
evidence.” Were an administrative finding of liability
conclusive, it would, as the district court pointed out, be
“unnecessary, and indeed strange,” Herron, 305 F. Supp. 2d at
77, for the Supreme Court to have stated that “findings with
respect to” the claim could “be admitted as evidence.”
Chandler is helpful in another respect. The Court explained
that the Equal Employment Opportunity Act of 1972, Pub. L.
No. 92-261, 86 Stat. 103, which extended Title VII to federal
employees, sought “to accord [them] the same right to a trial de
novo as is enjoyed by private-sector employees.” 425 U.S. at
848. Requiring federal-sector plaintiffs to prove liability puts
them in approximately the same position as private-sector
plaintiffs who, unable to obtain legally-binding EEOC findings,
see 42 U.S.C. § 2000e-5, must litigate both liability and remedy.
In a recent decision examining the issue presented here, the
Tenth Circuit reached the same conclusion we do: that Title VII
does not permit courts to review administrative dispositions’
7
remedial awards without first determining whether
discrimination occurred. Timmons v. White, 314 F.3d 1229
(10th Cir. 2003). True, as Scott points out, the Fourth and Ninth
Circuits have arrived at the opposite conclusion, but we think
the decisions of those circuits are flawed.
In Pecker v. Heckler, 801 F.2d 709 (4th Cir. 1986), the
Fourth Circuit, without “distinguish[ing] between an action for
enforcement of a final” disposition and a suit challenging such
a disposition, Timmons, 314 F.3d at 1236, stated that
“defendants are bound by” EEOC “findings of discrimination
and retaliation,” 801 F.2d at 711 n.3. But Pecker failed to
consider Title VII’s plain language and relied on two decisions
that provide no support for its broad conclusion: Houseton v.
Nimmo, 670 F.2d 1375, an enforcement action, and Moore v.
Devine, 780 F.2d 1559, which not only distinguished between
enforcement actions and challenges to administrative
dispositions, but also, when explaining that courts must enforce
EEOC decisions, made clear that it referred only to the former
type of case. Later, in Morris v. Rice, 985 F.2d 143, 145-46 (4th
Cir. 1993), the Fourth Circuit held explicitly that a “plaintiff
may limit and tailor his request for de novo review . . . without
exposing himself to a de novo review of a finding of
discrimination.” Yet in Morris the court relied primarily on its
earlier decision in Pecker. Id. For additional support, it cited
only Moore and a Sixth Circuit decision, Haskins v. Department
of the Army, 808 F.2d 1192 (6th Cir. 1987), where the court had
no need to decide whether a plaintiff can seek limited de novo
review because the defendant there had conceded liability.
The Ninth Circuit decision, Girard v. Rubin, 62 F.3d 1244
(9th Cir. 1995), suffers from precisely the same defects. Like
Pecker and Morris, it fails to examine Title VII’s text, relying
instead on Houseton, Morris, Haskins, and language in Moore
referring only to enforcement actions. Id. at 1247.
Scott insists that requiring relitigation of liability runs
8
counter to Title VII’s policy of encouraging resolution of
discrimination complaints at the administrative level. See West
v. Gibson, 527 U.S. 212, 218-19 (1999) (discussing this policy).
Requiring plaintiffs who challenge a remedial award to
“relitigate [a final disposition’s] finding of discrimination . . .
would ill serve” this policy, Scott contends, because the
requirement “would encourage employees to go directly to court
at the first opportunity, instead of running the risk of erroneous,
unreasonably low damages . . . based on findings of
discrimination that would not be enforceable in federal court.”
Appellant’s Br. at 18-19. According to Scott, such a
requirement would also “encourage disingenuous behavior on
the part of federal agencies.” Id. at 20. Agencies could “speak
out of both sides of their mouth by accepting liability in the
administrative process only to attempt to deny it in the U.S.
District Court.” Id.
We think these policy arguments fail to overcome Title
VII’s language. As to Scott’s first point, Title VII requires
exhaustion of most administrative remedies. 42 U.S.C. § 2000e-
16(c). Complainants must pursue these remedies until the
employing agency enters its final action, or for 180 days if the
employing agency fails to act before then. Id. It may be true, as
Scott’s counsel asserted at oral argument, that agencies often fail
to take final action within 180 days, and that employees may
have some incentive to sue when the right to do so accrues. Yet
employees also have incentives not to do so: the administrative
process could produce a final disposition acceptable to the
employee, or if not, it could yield valuable evidence the
employee could use in a later lawsuit. Given this, and given
Title VII’s exhaustion requirement, we think the effect of
prohibiting remedies-only suits on an employee’s incentive to
pursue the administrative process is far from clear—and
certainly not clear enough to justify ignoring Title VII’s plain
language.
9
As to Scott’s second point, we see nothing disingenuous
about an employing agency adopting an AJ’s liability finding
and then disputing liability in court, given that the decision to
adopt the finding may well rest in part on the size of the
remedial award. In this case, for example, DOA may have
accepted the liability finding because it thought the remedy,
including the $10,000 compensatory award, was reasonable, or
at least not worth contesting. Now faced with the prospect of a
larger award, DOA might quite legitimately wish to contest
liability.
III.
Under Title VII, federal employees who secure a final
administrative disposition finding discrimination and ordering
relief have a choice: they may either accept the disposition and
its award, or file a civil action, trying de novo both liability and
remedy. They may not, however, seek de novo review of just
the remedial award, as Scott tries to do here. We affirm the
judgment of the district court.
So ordered.