The opinion of the court was delivered by: DEBEVOISE
Plaintiff, Charles Brown and John Lee, civilian employees of the federal Naval Weapons Station Earle, Colts Neck, New Jersey, bring this action pursuant to section 717 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, alleging discrimination in employment on the basis of race. Defendant, the United States Secretary of Defense, now moves to dismiss portions of Brown's Title VII claims and all of Lee's Title VII claims on the ground that plaintiffs failed to bring all acts of discrimination alleged in the complaint to the attention of an Equal Employment Opportunity (EEO) Counselor within thirty days of their occurrence.
Defendant's motion, premised upon Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserts a lack of subject matter jurisdiction. The Third Circuit has explicitly held, however, that "(t)he filing limits under Title VII are not jurisdictional". Bronze Shields, Inc. v. New Jersey Department of Civil Service, 667 F.2d 1074 at 1084, (3d Cir., 1981); see also Hart v. J.T. Baker Chemical Corp., 598 F.2d 829 (3d Cir. 1979). It is true that this principle was established in the context of cases arising under section 706 of Title VII, 42 U.S.C. § 2000e-5. Nevertheless, since the Third Circuit has held that federal employees are entitled to an "equality of remedy" with private sector litigants, it applies with equal force to section 717. See Ettinger v. Johnson, 518 F.2d 648, 652 (3d Cir. 1975); Sperling v. United States, 515 F.2d 465 (3d Cir. 1975). Accordingly, defendant's motion will be treated as one to dismiss for failure to state a claim, pursuant to Rule 12(b)(6). To the extent that materials outside the pleadings which have been presented to the court are not excluded, the motion will be treated as one for summary judgment and disposed of as provided in Rule 56. See Rule 12(b).
Plaintiff Brown is an Electronics Technician in the Calibration Electronics Laboratory at the Naval Weapons Station Earle and holds a civil service rating of GS-7. He has been employed at the Weapons Station since 1950.
On August 15, 1979 Brown initiated an administrative proceeding under Title VII by contacting an EEO Counselor with a complaint of employment discrimination on the basis of his race. See 29 C.F.R. § 1613.214(a)(1)(i). The EEO Counselor did not succeed in resolving the matter and issued a Notice of Final Interview on September 21, 1979. On October 12, 1979 Brown filed a formal administrative complaint with the Commander of the Weapons Station alleging that authorities at the facility had discriminatorily passed him over for promotion; added derogatory statements to his 1978 job performance rating after he had signed what he believed to be a satisfactory rating; downgraded his performance rating of August 16, 1979; and failed to carry out the terms of a settlement of a discrimination charge he had filed in 1971. See 29 C.F.R. § 1613.214(a)(1)(ii).
On October 31, 1979 the Commander sent plaintiff a letter rejecting all of plaintiff's claims except his claim that he had been denied promotion on the grounds that they were either untimely or outside the purview of applicable administrative regulations. See 29 C.F.R. § 1613.215. The Commander indicated that he would not consider the denial of promotion claim unless plaintiff supplied a more detailed claim within five working days. On February 28, 1980 the Commander rejected plaintiff's denial of promotion claim on the ground of failure to prosecute.
Upon the Commander's rejection of the last of his claims, plaintiff was informed of his right to file a civil action in the District Court within thirty days. He instituted suit on March 31, 1980.
Plaintiff Lee is also an Electronics Technician in the Calibration Electronics Laboratory at the Naval Weapons Station Earle with a civil service rating of GS-7. He has been employed at the Weapons Station since 1946.
Lee contacted an EEO Counselor with a complaint that he had been discriminatorily denied promotion on January 14, 1980. The EEO Counselor was unable to resolve the matter and issued a Notice of Final Interview on February 12, 1980. On March 3, 1980 Lee filed a formal administrative complaint in which he alleged that from "1967 continuous" he had been denied promotion at the Weapons Station on account of his race. In an addendum attached to his complaint Lee charged that upon his inquiry about opportunities for promotion he was informed that he "needed more schooling"; that he was never informed exactly what type of "schooling" was necessary; and that despite his completion of several courses he was still rejected for promotion on the ground of insufficient "schooling". He sought, he declared, a determination "that a case of discriminatory patterns practiced over 11 to 13 years has prevented me from being promoted to the GS-9", and requested a promotion to GS-9.
By letter dated March 20, 1980, the Commander of the Weapons Station notified Lee that his administrative claim would be rejected as untimely and notified him of his right to bring a civil action in the District Court within thirty days of receiving the letter. In a complaint filed jointly with plaintiff Brown, Lee instituted suit on March 31, 1980.
2. Defendant's Motion to Dismiss
Defendant seeks dismissal for failure to exhaust administrative remedies of all of plaintiffs' claims which were not brought to the attention of an EEO Counselor within thirty days of their occurrence.
Section 717 of Title VII, 42 U.S.C. § 2000e-16, provides for district court review of discrimination claims brought by federal employees only after "final action taken by a department, agency, or unit" or, within "180 days from the filing of (a) charge or ... appeal (if) the agency or Civil Service Commission (since 1978, the Equal Employment Opportunity Commission) has not taken final action". Brown v. General Services Administration, 425 U.S. 820, 832, 96 S. Ct. 1961, 1967, 48 L. Ed. 2d 402 (1976). Although § 717 itself contains no time limitation for commencing agency action, the regulations promulgated pursuant to § 717(b) provide that a federal agency may accept a formal complaint of discrimination only if:
The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter, or, if a ...