11 Fair Empl.prac.cas. 769,10 Empl. Prac. Dec. P 10,505willie C. Haire, Appellant, v. Howard 'bo' Calloway, Secretary, U.S. Army, Appellee.evelyn M. Jones, Appellant, v. E. T. Klassen, Postmaster General, United States Postalservice, Appellee, 526 F.2d 246 (8th Cir. 1975)

In No. 74--2004, Willie C. Haire, a federal civil service employee of the United States Army Material Command in St. Louis, claims he did not receive a promotion because he is black. After exhausting his administrative remedies which included a hearing before a federal complaints examiner, an adverse decision by his agency, and an unsuccessful appeal to the Board of Appeals and Review of the Civil Service Commission, Haire brought a civil action in district court against the Secretary of the Army under provisions of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e--17, amending Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. District Court Judge Meredith denied Haire a trial de novo and granted summary judgment denying him any relief on the basis of the administrative record. He found that the preponderance of evidence demonstrated that Haire was denied promotion for valid reasons and not because of his race. Haire v. Calloway, 385 F. Supp. 309 (E.D. Mo. 1974). Haire brought this timely appeal.

In No. 75--1050, Evelyn Jones, a former United States postal employee, alleges that she was unlawfully fired from her federal employment and denied certain sick leave benefits because she is a black woman. She, too, unsuccessfully pursued and exhausted her federal administrative remedies and then sought relief by bringing an action against the Postmaster General in federal district court under the same provisions of Title VII as did appellant-Haire. District Court Judge John K. Regan entered summary judgment denying Ms. Jones any relief, determining that the record of the administrative hearings disproved by the clear weight of the evidence her accusation of discrimination. Jones v. Klassen, 389 F. Supp. 406 (E.D. Mo. 1974).

In these consolidated appeals, appellants present the threshold contention that the summary proceedings in district court deprived each of them of a trial de novo to which they were entitled under Title VII of the Civil Rights Act of 1964 as amended.

Section 717(c) of the Equal Employment Opportunity Act of 1972 provides that a federal employee aggrieved by the final administrative disposition of his complaint by his agency or the civil Service Commission 'may file a civil action as provided in section 706 (42 U.S.C. § 2000e--5), in which civil action the head of the department, agency * * * as appropriate, shall be the defendant.' 42 U.S.C. § 2000e--16(c). Section 717(d) provides that '(t)he provisions of section 706(f) through (k) (42 U.S.C. §§ 2000e--5(f)--(k)), as applicable, shall govern civil actions brought hereunder.' 42 U.S.C. § 2000e--16(d). Appellants argue that this language gives federal employees all of the remedies available to nonfederal employees in an action under section 706 including the right to a plenary de novo trial.

The federal courts are deeply divided on whether this language entitles a federal employee to an automatic plenary de novo trial, notwithstanding a prior complete adversary administrative hearing and record. One line of cases follows the seminal opinion of Judge Gesell in Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C. 1973).¹  There Judge Gesell ruled that the district judge should affirm the administrative decision if it is clearly supported by a preponderance of the evidence in the administrative record. If not, the court is to remand or take additional evidence.

Another line of cases holds that a federal employee is entitled to the same plenary de novo trial as is a private employee.²  These decisions permit the trial court to rule summarily on the merits only where the evidentiary record established in the administrative proceedings is complete and undisputed and the plaintiff has availed himself of the full panoply of discovery procedures.³ 

Because the cases are so sharply divided, we have undertaken an independent study of the Act and its legislative history. No section of the Act directly establishes the standard for judicial intervention following full administrative consideration of a federal employee's Title VII claim. In the words of Judge Leventhal, the language and structure of the Act 'can be argued either way.' Hackley v. Roudebush, supra, at 171 (Leventhal, J., concurring).

The tortuous legislative history does little to illumine the Congressional intent on the precise issue before us. Several statements by legislators who played an important part in drafting the Act and shepherding it through Congress directly support the conclusion of Judge Gesell that the courts are merely to review the administrative record. Other parts of the history point strongly toward a de novo trial. The opinions previously cited fully discuss the pertinent history; another lengthy exegesis here would serve no useful purpose.⁴ 

However, two conclusions are inescapable. First, Congress intended that the remedy extended to federal employees be fully equivalent to that afforded private employees. Second, Congress mandated the prompt disposition of these cases.

We think that equivalency of remedy between private and federal employees requires something more than merely determining whether the agency decision can be supported from the administrative record. It is clear that the 1972 amendments were adopted precisely because administrative action had proved unsatisfactory in resolving complaints of unlawful employment practices. The essence of the plenary trial afforded a private employee is the right to an independent judicial determination of his claim. Full equivalency requires that federal employees be afforded this same independent judicial determination.

However, full equivalency does not require an identical plenary trial de novo with full procedural accoutrements. Congress has mandated that Title VII cases be speedily and efficiently decided. 42 U.S.C. § 2000e--5(f) (4) & (5). A prompt judicial determination benefits the agency as well as the employee. Where the federal employee elects to proceed administratively through Civil Service channels, good faith requires the employee to make a complete showing of the evidence supporting his claim.⁵  Once such a complete record has been compiled, it would be duplicitous and wasteful to require the district court to re-open the record absent a showing of need.

Accordingly, while we generally agree with the District of Columbia, Third, and Seventh Circuits that a federal employee is entitled to a judicial determination of the merits of his claim, we think district courts possess the power to make that decision summarily upon an administrative record that is fairly made and that completely discloses the relevant facts upon which the plaintiff relies.

As a corollary, the district court, on a showing of need, should exercise its discretion to re-open the record and hear additional evidence or permit the plaintiff to proceed to develop additional relevant evidence through discovery procedures. This discretion should be liberally exercised in order to assure that the federal employee-plaintiff is given a full and fair opportunity to develop all the facts bearing upon his claim.

However, where there is no sound basis for reopening the record, the district court, without more, may proceed to a decision on the merits.⁶ 

We recognize that the Federal Rules of Civil Procedure do not expressly sanction this procedure. Rule 56 applies only where 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' Rule 56(c).⁷  However, Rule 56 is not the only source of district court authority.

Rule 16 permits the trial court to call a pre-trial conference to consider methods of expediting a trial. In matters relating to discovery, Rule 26 permits the court to 'make any order which justice requires to protect a party or person from annoyance * * * or undue burden or expense * * *.' Rule 26(c). Rule 102 of the Federal Rules of Evidence requires the court to regulate the admission of evidence 'to secure fairness in administration, elimination of unjustifiable expense and delay, (and to promote) growth and development of the law of evidence * * *.' Finally, Rule 403 permits the court to exclude relevant evidence because of 'considerations of undue delay, waste of time, or needless presentation of cumulative evidence.'

These general rules must be applied in light of the Congressional intent that complaints of federal employment discrimination be decided promptly. The Act requires that when a complaint is filed, a trial judge must be designated to hear the case immediately; if no judge of the district is available, a district or circuit judge of the circuit must be designated to hear and determine the case. 42 U.S.C. § 2000e--5(f) (4). Once a trial judge is appointed, he is under an express Congressional mandate 'to cause the case to be in every way expedited.'⁸ 

We believe the rules discussed above, when read with the Congressional mandate requiring prompt disposition, provide adequate authority for the carefully limited summary procedure approved by this opinion.

On the merits the court should apply the same standards of proof that have been established in private discrimination suits. Hackley v. Roudebush, supra, at 157. Using these standards, the court must independently determine whether the plaintiff has established a prima facie case of discrimination, and if so, whether the employer has negated discrimination by a preponderance of the evidence.⁹ 

With this standard a mind, we turn to the cases at hand. In Haire v. Calloway, although Judge Meredith issued his decision in response to the motion for summary judgment, we think it apparent in reading the opinion that he carefully reviewed the record and independently found 'no evidence in the record to indicate that this selection (of a white employee for a vacancy) was made on the basis of race.'¹⁰ 

This finding of the district court is not clearly erroneous and must be sustained unless the plaintiff can show that the procedure followed by the district court prejudiced him by foreclosing his opportunity to present additional evidence to supplement the record.

Haire argues that the EEO counsellor, Ray Collins, was not permitted to testify, that an important witness was ill and not available at the agency's hearing, and that an important conflict in the testimony was left unresolved in the administrative hearing. In light of these contentions, the case must be remanded. The district court should determine whether appellant Haire has demonstrated a need to supplement the record; if so, the district court must afford him the opportunity to present additional evidence. If the record is reopened, the trial court should make its determination anew on the entire record.

Similarly, in Jones v. Klassen, Judge Regan reviewed the administrative record. In addition to finding support for the decision of the Civil Service Board by a 'clear weight of the evidence,' the court said:

There is an entire want of any evidence that any Caucasian employee, male or female, or any black male was treated differently than was plaintiff. We are satisfied that plaintiff was not discriminated against by reason of sex or race. She contended, however, that another black female, with a lighter complexion than plaintiff, received more lenient treatment during an absence due to illness. The record discloses that the lighter skinned black female (Ardena Morrow) had sustained a broken neck in an automobile accident and was incapacitated for a lengthy period. (Id. at 408.)

This discussion indicates that the trial court exercised its independent judgment on the facts. The finding of no discrimination is not clearly erroneous. The record in the Jones case appears complete. Appellant makes no contention that such record could be amplified in any significant respect. Under these circumstances, we affirm the judgment of the district court.

Accordingly, No. 74--2004 is remanded to the district court for further proceedings consistent with this opinion, and No. 75--1050 stands affirmed.

In light of our holding on the important trial de novo issue, we award costs on appeal to appellants.