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11/09/78 James A. Bethel, Jr., v. Burtell M. Jefferson

November 9, 1978

JAMES A. BETHEL, JR., APPELLANT

v.

BURTELL M. JEFFERSON, CHIEF OF POLICE, METROPOLITAN POLICE DEPARTMENT ERNEST E. HEMBY, APPELLANT

v.

BURTELL M.



Before McGOWAN, TAMM and ROBINSON, Circuit Judges.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

JEFFERSON, Chief of Police, Metropolitan Police

Department 1978.CDC.201

Appeals from the United States District Court for the District of Columbia (D.C. Civil Action Nos. 75-0490 and 1012-73).

APPELLATE PANEL:

Opinion for the court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III. DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON

These appeals present us primarily with the task of determining which section of Title VII of the Civil Rights Act of 1964, *fn1 as amended by the Equal Employment Opportunity Act of 1972, *fn2 officers of the District of Columbia Metropolitan Police Department must utilize when administratively or judicially pressing claims of employment discrimination. In each of these cases the District Court held *fn3 that the proper route is Section 706, which requires, as a precondition to judicial review, enlistment of the efforts of the Equal Employment Opportunity Commission. *fn4 Because appellants had not complained to the Commission and consequently had not received a "right-to-sue letter" *fn5 from it, their employment discrimination suits were dismissed. *fn6 As an alternative ground, the court held that Title VII jurisdiction was lacking in any event since, in its view, the alleged acts of discrimination occurred prior to March 24, 1972, the date upon which Title VII became applicable to governmental employees. *fn7 The court felt that the 1972 Act had no retroactive force because appellants had no formal complaints of discrimination pending, administratively or otherwise, on that date. *fn8

We, too, find that Section 706 sets forth the Title VII remedy enjoyed by District policemen, *fn9 but we disagree with the conclusion that appellants' failure to first pursue their causes with the Commission precludes this litigation. *fn10 We also perceive error in the determination that no post-1972 discrimination is present in these cases. *fn11 We accordingly reverse the judgments appealed from and remand the cases to the District Court for further proceedings. *fn12 I. FACTUAL AND PROCEDURAL BACKGROUND

The two appellants are uniformed officers of the Metropolitan Police Department. Each alleges racial discrimination in disciplinary and other actions taken by the Department against them. Beyond that, their cases differ in material respects.

A. Bethel's Case

Appellant Bethel faced a police trial board on charges stemming from an incident occurring in July, 1971. In October of that year, the board recommended that he be removed from the force. The disposition would have become final had Bethel not appealed *fn13 to the Mayor of the District of Columbia14, which he did, arguing that the board's action was not sufficiently supported by evidence in the record. While the board's recommendation was under review by the Mayor, Bethel remained suspended but still a member of the force.

On August 22, 1974, the Mayor accepted the board's factual findings but changed the outcome to suspension without pay for 35 months, approximately the period of time it had taken to resolve the appeal. Bethel first learned of the Mayor's decision on September 19. On October 1, he complained to the District's Office of Human Rights, the agency designated to entertain complaints of discrimination emanating from employment with the District of Columbia Government,15 and to the Civil Service Commission. Since, however, Bethel did not occupy a federal civil service position, the Commission held that the matter was not within its jurisdiction. The Office of Human Rights also disclaimed jurisdiction, but on the ground that Bethel had not complained to it within 15 days of the July, 1971, incident. Bethel filed suit in the District Court within 30 days of those decisions.

B. Hemby's Case

Appellant Hemby's grievances are that on several occasions he was harassed by Department personnel because of his race and religion16 and in retaliation for complaints charging discrimination prohibited by Title VII.17 In all, Hemby faced three police trial boards, and each time he lost. In one such instance a disciplinary action the decision of the board was appealed to the Mayor who, on April 13, 1973, rejected the board's recommendation of suspension and ordered a forfeiture of six months' backpay. On May 24, within 30 days of receipt of notice of the Mayor's disposition, Hemby initiated his lawsuit.

Thereafter, on December 14, 1973, Hemby appeared before another trial board. Again it was recommended that he be separated from the force, and again he appealed on the merits to the Mayor. For a procedural defect irrelevant to this litigation, the Civil Service Commission ordered that Hemby be restored to the payroll pending decision of the administrative appeal, which apparently still remains unresolved. Hemby has supplemented that appeal with a brief arguing that the trial board acted in retaliation for the filing of his civil rights suit against the Department. On July 1, 1974, Hemby amended his complaint in the District Court to allege that that ...


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