UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
May 18, 1979
LAURENCE C. JONES, JR., PLAINTIFF-APPELLANT,
GEORGE P. SHULTZ, SECRETARY, DEPARTMENT OF TREASURY, AND DONALD C. ALEXANDER, COMMISSIONER, INTERNAL REVENUE SERVICE, DEFENDANTS-APPELLEES.
Appeal from the United States District Court for the Southern District of New York.
PRESENT: HON. MURRAY I. GURFEIN, HON. THOMAS J. MESKILL, Circuit Judges, HON. JACK R. MILLER, Judge*fn*
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel.
After a non-jury trial, the District Court for the Southern District of New York (Hon. Lee P. Gagliardi, Judge) held that the Internal Revenue Service had properly refused appellant's reinstatement as an Estate and Gift Tax Examiner. The trial court found that refusal to reinstate appellant, who had previously resigned, was based on consideration of relevant and lawful factors, including prior marginal performance and three official reprimands, and that no violation of 42 U.S.C. § 2000e-16 was shown. The Judge made this finding of non-discrimination but did not pass upon plaintiff's allegations that the adverse findings against him during his employment were retaliation for his assertion of his civil rights. The trial court held that this charge was not before it because appellant had failed to raise it before the Agency and had thus failed to exhaust his administrative remedy. We have examined the administrative record and find that appellant did in effect raise the issue of retaliation. The cause is remanded, accordingly, to consider the issue of retaliation and to decide that issue on the present record or, if he cannot do so, by the taking of new evidence.
We commend to the District Court's attention Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977).