Unpublished Disposition, 872 F.2d 429 (9th Cir. 1987)

MEMORANDUM^* 

Oscar Morris, a black man, was an equal opportunity specialist with the Equal Employment Opportunity Commission (EEOC). In December of 1980, Morris sought promotion to a GS-12 position. Although appellant qualified as one of seven "best qualified candidates," the promotion was given to a white colleague, John Lee. The decision to promote Lee instead of Morris spawned litigation that can only be labeled a procedural quagmire. In this regard, the district court has our sympathies.

On March 9, 1981, Morris filed an administrative charge with the EEOC, alleging racial discrimination in the selection process. Four months later, Morris filed another administrative charge, contending that the EEOC had issued disciplinary memoranda in retaliation for filing the discrimination claim. On September 13 and 14, 1984, the EEOC conducted hearings on the failure to promote and on the retaliation claims. Shortly after the hearings, Morris' supervisor, Donald Muse, allegedly ordered an investigation of appellant's past casework and solicited sexual harassment charges to be used against Morris. In December, in what the EEOC describes as an unrelated action, Morris was suspended for ten days for insubordination. On February 15, 1985, appellant filed his first complaint in federal district court; he amended the complaint four days later, requesting injunctive relief against future discharge. In addition to an injunction, the complaint sought back pay for the failure to promote and redress for the alleged harassment following the September, 1984 hearing, including the alleged retaliatory investigation and suspension.¹  The injunction was denied, at least in part on the ground that appellant had an adequate remedy at law. The district court noted that " [t]he plaintiff's injury, should he prevail in this action, may be fully compensated through reinstatement and back pay." Following denial of the injunction, the EEOC fired Morris. One day after dismissing him, the EEOC rendered a final agency determination that rejected his failure to promote and disciplinary memoranda retaliation claims.

In July, 1985, the district court ruled on portions of Morris' claims. The court held that failure to exhaust administrative remedies barred the retaliation claims.²  The trial judge suggested that Morris add a Bivens claim for possible violation of his First Amendment rights. Early in 1987, Morris moved to amend his complaint to add the Bivens claim. He also sought to modify his Title VII claim by changing the termination claim from an injunctive to a back-pay claim and by reasserting the other previously dismissed retaliation arguments. Appellant was granted leave to add the Bivens claim. The trial court refused to permit Morris to modify or reinstate the retaliation claims on the ground of failure to exhaust administrative remedies.

On June 15, 1987, Morris filed a motion to reconsider, adding supporting affidavits to show that he had in fact met the exhaustion requirements for his retaliatory suspension and retaliatory discharge claims. The district court rejected his motion on the ground of prejudicial delay. On July 2, Morris filed a new amended complaint, including both a failure to promote and a Bivens claim but omitting the claims barred by the district court. Defendants moved for summary judgment on the failure to promote claim and submitted a motion to strike the Bivens claim. The court dismissed the Bivens claim with leave to refile in a separate action and granted the EEOC summary judgment on the failure to promote issue. Since then, Morris has filed the Bivens claim against Muse, and the district court has ruled that the filing was not barred by the statute of limitations.

On appeal, Morris offers several arguments: that he met his burden of producing sufficient evidence to survive summary judgment on the failure to promote claim; that the district court abused its discretion in striking the Bivens claim for prejudicial delay; that the district court erred in stating that he failed to exhaust administrative remedies for claims that he exhausted; and that it erred in requiring him to exhaust claims that were reasonably related to fully exhausted claims and in refusing to permit him to reinstate those claims on the ground of delay in asserting the necessary legal and factual arguments. We affirm in part and reverse in part.

Morris argues that the EEOC violated Title VII when a white male was promoted over him. In establishing a pool of qualified candidates, the EEOC relied upon a Promotion Evaluation Summary (PES) to select the best qualified applicants. Morris' score, along with six others, possessed the minimum acceptable total of six points. Morris' total of seven and 1/4 points also exceeded Lee's score of seven.

In a Title VII claim, the initial burden falls on the plaintiff to establish a prima facie case of discrimination. See McDonnell Douglas v. Green, 411 U.S. 792 (1973). Once the plaintiff carries the initial burden, the defendant must articulate a legitimate nondiscriminatory ground for the employment decision. If the defendant meets this burden, the plaintiff has a final opportunity to show that the stated cause is pretextual. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1409 (9th Cir. 1987).

Regardless of whether Morris has made a prima facie case, the EEOC has met its burden of showing a nondiscriminatory basis for its promotion. Under EEOC rules, the PES score is used only for selecting finalists; the score is not used to select among qualified candidates. The EEOC produced evidence that the successful candidate, John Lee, had superior supervisory evaluations, greater experience at EEOC, and possessed certain analytical and interpersonal abilities crucial to success in the slotted position. Under these circumstances, the EEOC has shown a reasonable nondiscriminatory motive for favoring Lee. Appellant has been unable to produce probative evidence tending to show that these factors were merely pretextual. We therefore affirm summary judgment on the failure to promote claim.

The district court struck appellant's Bivens claim. The court reasoned that inexcusable delay and prejudice to the defendant barred fair prosecution in the pending proceeding, but that the claim could be refiled in a new action. Morris has since filed an independent Bivens action, and this complaint has survived Muse's argument that it is time-barred. Defendants now argue that, since Morris has successfully filed the Bivens claim independent of this action, his appeal is moot. We agree that, if Morris' new Bivens claim is not time barred, the district court's action does not constitute an abuse of discretion and affirm its decision on the Bivens cause of action on that ground. Since on this appeal, the defendants have advised the court that Morris' refiled Bivens claim was timely, they will be estopped from arguing subsequently that the statute of limitations bars that claim.

Morris challenges the dismissal of his retaliatory suspension claims. Appellant was suspended for three days in December following the administrative hearing on the failure to promote issue. Appellant instituted grievance procedures after the suspension notice was issued, first with the Chairman of the EEOC and then later through a union-initiated arbitration proceeding. After Morris was discharged, processing of the grievance was discontinued.

The district court initially dismissed the retaliatory suspension claim for failure to exhaust administrative remedies. In 1987, when appellant produced evidence that he had followed the grievance procedure until the suspension merged with the discharge, the court, citing local rules, refused to reinstate his claims because Morris had not raised the proper legal arguments when the government initially moved for dismissal. We are sympathetic to the court's concerns. Appellant's pleadings are not, by any stretch of the imagination, a model of clarity. However, just as the EEOC statutory scheme should be read liberally in favor of the victims of discrimination,³  we must also read plaintiff's pleadings in such a light. Although appellant's March 1985 memoranda were admittedly somewhat obscure, we think that they were sufficient to raise his arguments on exhaustion.

Morris argues that the district court improperly barred his retaliatory discharge claim. A notice of termination was issued against Morris on November 6, 1984. Morris' union contested the termination notice with the EEOC. The termination notice was sustained and subsequently, on February 28, 1985, Morris was dismissed. On March 22, plaintiff filed a grievance procedure on the discharge with his union. The union pursued the grievance through the grievance procedure but, in late April, ultimately declined to seek arbitration on his behalf. On appeal, the government now concedes that appellant did in fact fulfill the exhaustion requirement; however, it now argues that his claim is time-barred because it was not pleaded in the original complaint.

Morris had thirty days following the final non-judicial determination of his claim within which to file his action in district court. 42 U.S.C. § 2000e-16(c). See Koucky v. Department of the Navy, 820 F.2d 300, 301 (9th Cir. 1987). The second amended complaint was not filed until March 1987, some 22 months after the end of the grievance procedure. However, in this case, all the parties and the district court have continuously treated the first amended complaint, which requested injunctive relief against retaliatory termination, as including a claim for backpay and reinstatement. The EEOC has repeatedly defended against the discharge claim on the grounds of exhaustion, not on the grounds of the statute of limitations. Although the original complaint was filed before the actual termination, the pleadings included language seeking both reinstatement and back pay. Moreover, the trial court's decision denying injunctive relief plainly suggested that the action before it was one which permitted a remedy of back pay and reinstatement--in other words, one which included a claim for wrongful discharge. Since the parties consistently conducted themselves in accordance with this view, we think the government is not free on appeal to raise for the first time a contrary reading of the pleadings. Federal Rule of Civil Procedure 8 requires only a simple and plain statement of the nature of the relief requested sufficient to put the party's on notice of their claims. We think that the pleadings did in fact put all parties on notice of the retaliatory termination claim. Since the government apparently no longer contests exhaustion, we reverse on the retaliatory discharge issue.⁴ 

Finally, Morris appeals the dismissal of his retaliatory harassment and investigation claim. The district court originally dismissed on the ground that appellant failed to adequately exhaust the administrative remedies afforded by the EEOC. Later when Morris attempted to provide documentation on the exhaustion question, the court refused to permit him to reinstate his claims because the delay was prejudicial to the defendant.

Morris' argument on the merits of exhaustion is premised upon our holding in Oubichon v. North American Rockwell Corp., 482 F.2d 569 (9th Cir. 1973). Under Oubichon, a Title VII plaintiff may seek relief in federal court for incidents not listed in the original agency complaint when new allegations are reasonably related to the original agency complaint. This formula holds true when the new claims arise during the pendency of the EEOC charge. Id. at 571. Exhaustion is thus not required when it merely erects a needless procedural barrier. In this case, the retaliation claim is sufficiently linked to the original facts underlying the EEOC complaint.⁵  Therefore, Morris has met the exhaustion requirements that are a prerequisite to the filing of this type of claim.

There still remains the question of unreasonable delay in providing the court with adequate arguments regarding exhaustion. We note that petitioner's last motion was made several months before trial was scheduled to start, and that six days earlier the district court had determined that no prejudice would result if plaintiff was permitted to add an entirely new Bivens count. More important, the harassment claim is incidental to the discharge claims and pertains to related incidents. Evidence regarding these incidents would be admissible in the discharge case. Since we have concluded that there is no exhaustion bar and defendant will in any event have to defend against the facts relating to the harassment charge, we see no reason why on remand, if Morris succeeds in persuading the district court that defendants actually committed the alleged acts of harassment, he should be barred from seeking whatever relief may be appropriate.

Conclusion

The district court's award of summary judgment on the failure to promote claim is affirmed; we also affirm the dismissal of the Bivens claim without prejudice to refiling in a separate action.⁶  The court, however, erred in dismissing the three retaliation claims, including the discharge claim, and we reverse and remand for further proceedings consistent with this disposition.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.