The Equal Employment Opportunity Act of 19721 (EEOA), which amends Title VII of the Civil Rights Act of 19642, extends procedural protections to federal employees complaining of employment discrimination. Under § 717(c) of the EEOA3 (42 U.S.C. § 2000e-16) a federal employee may file a civil action in United States District Court within 30 days of receiving notice that final action has been taken on his discrimination complaint by his agency or by the Civil Service Commission to which he can appeal. The right to file an action arises as well if within 180 days the agency has not taken final action on his complaint or the Civil Service Commission has not taken final action on his appeal.

The instant case presents several problems in the allocation of responsibilities between executive agencies and the federal district courts in the application of the EEOA. Before analyzing the problems, it is necessary to present the factual background against which they should be viewed.

Appellant Grubbs, an employee of the Food and Nutrition Service^S of the Department of Agriculture, filed informal charges of sex discrimination within the FNS on February 17, 1971.4 Failing to secure relief through informal channels, she filed a formal complaint on June 14, 1971. On January 21, 1972, after the complaint had been investigated by the Department's Office of Inspector General (OIG), Mr. Edward J. Hekman, Administrator of the FNS, found that "discrimination because of sex had not been established." On January 27, 1972 Ms. Grubbs indicated her intention to seek a hearing within the Department on her charges.5

While the action before the FNS was pending, Ms. Grubbs claims that she was subjected to acts of reprisal by her superiors. These acts culminated, she alleges, in a reorganization of her office in January, 1972 which resulted in her transfer from a supervisory to a non-supervisory position. Therefore, at the same time that she indicated her intention to proceed to hearing on her initial charges, she also extended her complaint to cover the alleged reduction in rank and acts of reprisal.

Rather than proceed with her reduction in rank charges within the Department, Ms. Grubbs, as provided for in 5 C.F.R. 752.203, appealed the alleged reduction in rank directly to the Civil Service Commission. With that appeal she joined a claim that the reorganization and transfer were acts of reprisal. Thus, as of November, 1972 Ms. Grubbs was proceeding on two fronts. Her charges relating to the 1971 acts of alleged discrimination were before the Department awaiting a hearing, while the reduction in rank and reprisal charges were before the Civil Service Commission.

At a November 7, 1972 prehearing conference on the 1971 charges, an oral agreement as to a settlement was reached. However, when reduced to writing it did not meet with Ms. Grubbs' approval. She indicated this in a letter to the Department on January 11, 1973. On March 22, 1973, she notified the Department of her continued intention to seek a hearing within the Department both on the 1971 charges and the reprisal charges. The Department agreed to hold a hearing on the 1971 charges but, citing the fact that the reprisal issue had been appealed directly to the Civil Service Commission, indicated that its hearing would not cover that issue.

On April 12, 1973, the Civil Service Commission rendered a decision on the reprisal and reduction-in-rank issues. It found that Ms. Grubbs' reassignment was not a reduction-in-rank6 and was therefore not properly before the Commission at that time. Moreover, since Commission regulations "permit the joining of a discrimination or reprisal charge with (reduction-in-rank charges) only when (the latter are) properly before the Commission," the Commission found that the reprisal charges as well "fall outside of the scope of the Commission's review."7

On May 4, 1973, Ms. Grubbs filed an action pursuant to § 717(c) of the EEOA in the United States District Court for the District of Columbia claiming that the Department's actions in 1971 and its alleged acts of reprisal had violated the antidiscrimination provisions of the EEOA.8 One month later, on June 5, 1973, the Department informed Ms. Grubbs that it intended to continue separate administrative proceedings on her 1971 charges either on the record of the investigation that had been conducted or, if she requested, with a hearing. While claiming that the District Court had exclusive jurisdiction over the matter, Ms. Grubbs nevertheless did notify the Department that she would participate in the hearing. The hearing was scheduled for August 14, 1973. A request to postpone the hearing was denied by the Complaints Examiner appointed to hear the case.

At that point, Ms. Grubbs sought and obtained a temporary restraining order in the District Court prohibiting the Department from proceeding with the hearing. However, several days later, on August 21, 1973, Ms. Grubbs' request for a preliminary injunction prohibiting further administrative processing of her claim by the Department was refused by the trial judge. At the same time the trial judge indicated that "plaintiff will be required to exhaust her administrative remedies within the (Department)." These rulings are the subject of this appeal. On September 14, 1973, a division of this court enjoined the Department from proceeding any further pending disposition of this case.

As a threshold matter, we address appellee's assertion that the District Court lacked jurisdiction. Appellee argues that the EEOA should not be applied to acts of discrimination which occurred prior to March 24, 1972, the act's effective date.

This argument, however, is conclusively precluded by our recent decision in Womack v. Lynn, 504 F.2d 267 (D.C. Cir. 1974). There we held that since the right to sue embodied in § 717(c) of the EEOA is merely an additional means to enforce an already existing right to be free from employment discrimination, the statute would apply retroactively to any cases in which proceedings were pending on its effective date. With Ms. Grubbs already having instituted proceedings in the Department of Agriculture by March 24, 1972, the EEOA is therefore applicable to her case.9

We turn now to the District Court's ruling that Ms. Grubbs "will be required to exhaust her administrative remedies within the (Department)." We agree with Ms. Grubbs that since her original discrimination complaint had been pending before the Department of Agriculture for over two years further exhaustion should not have been required.10

As noted, supra, slip page ---, --- U.S.App.D.C. page ---, --- F.2d page ---, § 717(c) of the EEOA provides that a civil action may be filed when 180 days have passed without final administrative action having been taken on a complainant's initial charge.11 The 180 day provision represents a Congressional determination that providing prompt access to the courts in discrimination disputes is so important that the administrative process will be given only a finite time to deal alone with a given dispute. Indeed, the Act is in part a response to Congressional realization that "the doctrines of exhaustion of remedies . . . had become (a) barrier(s) to meaningful court review."12 Requiring a complainant to further pursue administrative remedies after fulfilling all the prerequisites to suit specified by the EEOA and, most importantly, after 180 days have elapsed without final administrative action, would frustrate that response.

No appellate court has yet superimposed an exhaustion requirement on the statutory prerequisites to suit as set out in § 717(c). And, recently, our District Court in Williams v. Mumford, 5 FEP Cases 1042 (D.D.C.1973), held that, regardless of the availability of any further administrative remedy, a federal employee has a right to file a civil action under § 717(c) if final agency action has not been taken within the 180 day period.

Nor does the addition of a further exhaustion requirement to § 717(c) find support in the cases interpreting the analogous part of Title VII dealing with private employees' rights of action in discrimination cases.13 In McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court noted that the prerequisites to suit set out in the statute were the only ones that Congress meant to apply: "We will not engraft on the statute a requirement which may inhibit the review of claims of employment discrimination in the federal courts." Id. at 1822. Even before McDonnell Douglas, Courts of Appeals were unwilling to supplement the statutory scheme with any additional prerequisites that might delay or dilute a private complainant's full access into District Court.14

Finally, 42 U.S.C. § 2000e-5(f) provides that "it shall be the duty of the trial judge to assign the (discrimination) case for hearing at the earliest practicable date and to cause the case to be in every way expedited."15 This explicit Congressional desire for expedition might be thwarted if trial judges were free to impose an exhaustion requirement over and above the 180 day provision for federal employment discrimination cases.16III

The remaining question is whether the administrative proceedings dealing with Ms. Grubbs' discrimination complaint can proceed concurrently with the proceedings in the trial court. This issue is presented by the trial judge's denial of the preliminary injunction sought by Ms. Grubbs. The scope of our review in such matters is of course limited to determining whether the trial judge abused his discretion or rested his analysis upon an erroneous legal premise.17

The District Court found that Ms. Grubbs had made neither the required showing that she had a substantial likelihood of succeeding on the merits nor that denial of the requested injunction would cause her irreparable harm.18 We find no basis for disturbing these findings.

Substantial factors weigh against the probability that Ms. Grubbs will succeed on the merits of her claim that the Department of Agriculture has lost jurisdiction over her discrimination complaint. First, nothing in the Act implies that administrative processing of a case must terminate once a civil suit is brought.19 Section 717(c) provides access to the judicial forum if there has been no final administrative action on an individual's complaint for 180 days; it does not terminate active administrative involvement with the complaint once that access has been utilized.

Secondly, while Title VII does not explicitly provide that administrative and judicial processing of either federal or private employee complaints shall proceed concurrently, its text does provide one significant indication that Congress foresaw the possibility of concurrent proceedings. 42 U.S.C. § 2000e-5(f)(1) provides that in a private employment discrimination case, the District Court may stay its proceedings for sixty days pending the termination of either local or state proceedings or Equal Employment Opportunity Commission efforts to conciliate the dispute. If the filing of a civil action automatically terminated all non-judicial jurisdiction over a discrimination dispute, this provision would be meaningless since no occasion could ever arise in which to apply it. Thus the existence of concurrent jurisdiction is apparently implicit in § 2000e-5(f)(1).20

Ms. Grubbs' chances of prevailing on her claim are further decreased by 5 C.F.R. § 713.23, one of the regulations adopted by the Civil Service Commission as a means of implementing the EEOA.21 That regulation provides that "The filing of a civil action (for employment discrimination) by an employee or applicant does not terminate agency processing of a complaint . . . under this subpart." Thus, in the most explicit fashion, the notion of concurrent jurisdiction is approved. Enjoining the administrative proceedings in the instant case would be tantamount to ruling that there is a substantial possibility that the quoted regulation is invalid. However, agency regulations are of course normally presumed valid unless shown to be inconsistent with the statute they implement;22 we can find no inconsistencies between the quoted regulation and the Act.

Nor has Ms. Grubbs shown that she would be irreparably harmed if the challenged administrative proceedings are not enjoined. Her claim rests largely on the thesis that denial of the injunction will mean that she will be compelled to proceed in the judicial and administrative fora at the same time. The pressures and expenses associated with this compulsion, she asserts, will irreparably harm the right granted her by the EEOA to have her claim adjudicated by the District Court.

Appellant's counsel acknowledged in oral argument that her claim of compulsion rests on the assumption that she is not entitled to a de novo trial in District Court. Hence, it is asserted, to the extent that the Department of Agriculture proceeding can be relied on by the District Court, she must participate in that proceeding in order to seek a favorable administrative record.

Whether the EEOA guarantees a trial de novo to federal employees in all employment discrimination cases is a question of great importance and one that has been the subject of much District Court litigation.23 However, in the instant case we need not decide whether the statute mandates an across-the-board de novo requirement. We are not concerned here with the need for de novo treatment in those situations in which a full administrative record has been compiled and final administrative action has been taken on a complaint prior to the filing of the civil action. Our consideration is much more narrowly confined to the weight to be afforded by the District Court to administrative proceedings which are not completed prior to the filing of a civil action under § 717(c).

The fact that the trial judge might rely on an administrative record compiled after the filing of Ms. Grubbs' civil action does not in itself mean that Ms. Grubbs will be irreparably harmed by denial of the injunction. If, before basing its decision on that administrative record, the trial court would give her a full and fair opportunity to present her own evidence, she could not claim to be compelled to participate in two proceedings simultaneously. With that opportunity, she could safely elect to concentrate her entire resources on the judicial proceeding.24

Largely in order to protect that option we hold that in adjudicating a claim of a federal employee under Title VII, the District Court may not rely on the record of administrative proceedings which were not completed prior to the filing of the civil action without giving the employee a full and fair opportunity to present his own evidence in court. Otherwise, the spirit and intent of the EEOA would be violated in two critical respects. First, it would, as noted, force a complainant to proceed in two fora at the same time. Faced with this prospect on filing a civil suit, a federal employee might feel constrained to refrain from filing and simply wait until the ongoing administrative proceeding is terminated. In granting employees a right to file after 180 days have passed without final administrative action, § 717(c) cannot be interpreted to have permitted the creation of such a constraint. While the administrative agency can exercise jurisdiction concurrent with that of the District Court under Title VII, that jurisdiction may not inhibit the exercise of rights granted under § 717(c).

Secondly, allowing the District Court to place undue reliance on an administrative record of which a part was compiled subsequent to the filing of the civil action might create an incentive for the trial court to delay its proceedings pending termination of the administrative proceedings. Such an incentive would threaten the statute's express aim of "(causing) the (judicial proceedings) to be in every way expedited."25

It follows from the foregoing that the District Court's denial of the requested injunction may not be disturbed. The case is remanded for proceedings to determine forthwith the merits of Ms. Grubbs' discrimination complaint.