APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA D.C. Civil Action No. 73-419
Van Dusen, Gibbons, and Rosenn, Circuit Judges.
Lucy Allen and Alice Koon appeal*fn1 from an order of the district court granting the motion of the United States for summary judgment in an employment discrimination suit brought pursuant to § 717(c) of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16(c), amending Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. We conclude that the district court erred in granting summary judgment, and we remand for trial.
On June 11, 1971, the Finance and Data Processing Division of the Veterans' Administration Regional Office in Pittsburgh posted a vacancy for the position of General Accounting Clerk, designated GS-501-4. Two black employees, Lucy Allen and Alice Koon, applied for the position, but a white female was selected to fill the vacancy. Believing that this appointment was racially motivated, Allen and Koon filed informal charges of discrimination with the Veterans' Administration Regional Office in Pittsburgh.
On September 27, 1971, a new vacancy for the position of General Accounting Clerk, designated GS-501-5, was advertised by the Veterans' Administration Regional Office in Pittsburgh. Allen and Koon once again applied, but were again passed over in favor of the white female who had received the earlier appointment. This action was also protested, and informal efforts were once again made within the Regional Office to resolve the grievances. The efforts proved unsuccessful.
On March 28, 1972, Allen and Koon jointly filed with the United States Civil Service Commission a formal complaint charging the Veterans' Administration with employment discrimination.*fn2 A hearing was conducted before an Appeals Examiner appointed by the Commission. On September 1, 1972, the Assistant General Counsel of the Veterans' Administration adopted the examiner's findings and conclusion that Allen and Koon had not been discriminated against because of race. This decision was affirmed by the Board of Appeals and Review of the Commission in an opinion dated January 15, 1973. On May 23, 1973, Allen and Koon filed the instant suit in the district court basing jurisdiction on, inter alia, § 717(c) of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16(c).*fn3
The district court held that the scope of judicial review under § 717(c) required only a review of the administrative record rather than a trial de novo. Reviewing the decision of the Commission by the substantial evidence standard, it was
"satisfied that the administrative determination herein was neither arbitrary nor capricious, and that the finding that there was no discrimination in this situation is supported by substantial evidence."
Accordingly, the district court granted summary judgment for the defendants. It is now clear that federal employees suing under § 717(c) are entitled to a trial de novo rather than to a substantial evidence review. Chandler v. Roudebush, 425 U.S. 840, 96 S. Ct. 1949, 48 L. Ed. 2d 416, 44 U.S.L.W. 4709 (1976); Sperling v. U.S., 515 F.2d 465 (3d Cir. 1975), cert. denied, 426 U.S. 919, 96 S. Ct. 2623, 49 L. Ed. 2d 372 (1976). Thus, the order appealed from must be reversed unless there appears without factual dispute in the record a ground for affirmance, other than that on which the district court acted.
The government urges that we can affirm the grant of summary judgment because the record establishes that the district court complaint of Allen and Koon was time barred by the statute of limitations provision contained in § 717(c); thus the district court was without jurisdiction to review the administrative action. Section 717(c) authorizes any person aggrieved after notice of final action by the Civil Service Commission on a discrimination complaint to institute suit in the district court within 30 days:
Within thirty days of receipt of notice of final action taken . . . by the Civil Service Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, . . . an employee or applicant for employment if aggrieved by the final disposition of his complaint, . . . may file a civil action as provided in ...