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Employment Discrimination – Public Health Nurse – Title VII – Race

An African-American registered nurse who alleges she was not hired by the Public Health Service Commissioned Corps because of race discrimination may have a claim under Title VII, if she applied for a vacancy not designated for commissioned officers that could be filled by civilians and her application could be rejected by the Corps, and the 4th Circuit says her case must be remanded for more findings.

After the agency in question, the National Institutes of Health, determined not to hire plaintiff, she filed a formal employment discrimination complaint with the NIH Office of Equal Opportunity and Diversity Management. Having exhausted her administrative remedies, plaintiff sued the Secretary under Title VII and 42 U.S.C. § 1981.

For several years, the federal appellate courts differed as to whether the § 2000e-16(a) waiver encompassed the PHSCC, or whether, like the armed forces, the PHSCC fell outside the waiver’s intended scope. Congress responded to this debate by enacting the Health Professions Partnerships Act of 1998, 42 U.S.C. § 213(f), which provided that active services of the PHSCC shall be deemed to be active military service in the Armed Forces of the U.S. for purposes of all laws related to discrimination on the basis of race, color, sex, ethnicity, age, religion and disability. In Hedin v. Thompson, 355 F.2d 746 (4th Cir. 2004), we concluded that Congress intended to bar claims under the anti-discrimination laws for all PHSCC officers in active service, not merely those engaged in active military service.

Here, the government maintains, and the district court held, that Congress has not waived sovereign immunity with respect to Title VII claims by PHSCC applicants, and for this reason, plaintiff has no cognizable claim. We are the first appellate court to consider this question.

The statutory language of § 213(f) simply does not support the government’s argument. No plain language transforms mere applicants to the PHSCC into “commissioned officers” of the PHSCC. And given that PHSCC applicants have not yet received commissions, they certainly have not engaged in active service in the PHSCC. Thus, we conclude the plain language of the statute at issue here does not mandate the conclusion that PHSCC applicants are barred from bringing Title VII claims.
We must return then to the question that divided the circuit courts prior to passage of § 213(f) – whether the PHSCC is included within the scope of the § 2000e-16(a) waiver of sovereign immunity.

Several reasons persuade us that Congress did not intend the § 2000e-16(a) waiver of sovereign immunity to cover the PHSCC, and so applicants to the PHSCC cannot bring Title VII claims. We agree with the 10th Circuit that Congress did not intend § 2000e-16(a) to extend Title VII protections to commissioned officers, or to applicants for commissioned officer positions in the PHSCC.

We conclude the waiver of sovereign immunity granted by § 2000e-16(a) does not encompass the PHSCC. Neither commissioned officers nor applicants to the PHSCC may bring claims under Title VII.

Plaintiff would lack a Title VII claim under § 2000e-16(a) with regard to any hiring decision related to those positions. But if the NIH vacancies were not designated for commissioned officers and could be filled by civilians, and if the PHSCC retained discretion to reject applicants regardless of their approval by the NIH (that is, if plaintiff was not yet a de facto member of the PHSCC), then plaintiff’s application is better characterized as one to NIH. Under those facts, the decision by NIH officials to reject plaintiff’s application would be sufficiently distinct from the PHSCC application process that she could be characterized as a civilian applicant to an executive agency for purposes of § 2000e-16(a), and thus she could assert a Title VII claim against the NIH hiring officials.

We vacate the judgment of the district court on plaintiff’s Title VII claim and remand for the court to determine how best to characterize plaintiff’s application.

Plaintiff also asserts a claim under 42 U.S.C. § 1981, but that statute does not provide a remedy against federal officials. If the district court should conclude plaintiff has a cognizable claim under Title VII, then Title VII represents her exclusive remedy against the U.S. for intentional employment discrimination.

Affirmed in part, vacated in part and remanded.

Middlebrooks v. Leavitt (Motz, J.) No. 05-1860, May 6, 2008; USDC at Greenbelt, Md. (Messitte) David J. Arkush for amicus Public Justice; Melanie L. Glickson, U.S. Att’y Office, for appellee. VLW 008-2-081, 14 pp.

VLW 008-2-081

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