Before ROBINSON, Chief Judge, McGOWAN, Circuit Judge, and OBERDORFER,* District Judge.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 75-1239).
Appellant, Doris G. Mangiapane, sued her employer, the Federal Aviation Administration , contending that she was denied a promotion in violation of Title VII of the Civil Rights Act of 1964. *fn1 The District Court dismissed the suit for alleged failure to properly pursue remedies available within the employing agency. *fn2 An employee refused promotion adequately exhausts, we have held, when facts stated at the administrative level are sufficient to put the agency on notice that promotion is an issue. *fn3 We find that appellant did at least that much, and accordingly we reverse. I
In a complaint filed with FAA, appellant charged that because of her gender her superiors had given her ratings that "(did) not reflect the true high value of (her) performance" and had denied her "promotional opportunities." *fn4 At no time during the nearly two and one half years that appellant's complaint remained pending, *fn5 however, did she volunteer evidence of any unsuccessful application for a higher position. *fn6 FAA eventually conducted an extensive investigation of the complaint, during which it interviewed several female employees to solicit their views on whether promotions were made in a discriminatory manner. *fn7 But no evidence was ever taken nor, apparently, was any requested on whether appellant had been refused promotion to any particular position to which she had aspired.
Immediately prior to an administrative hearing, appellant's counsel for the first time suggested that her client had sought but had been denied promotion to numerous higher-grade positions. *fn8 Counsel did not specify either the dates or the positions referred to. The hearing examiner, feeling that any problem of promotion was subsumed by the question whether appellant's performance ratings were discriminatorily motivated, decided to take evidence only on the latter point. *fn9 Consonantly, and notwithstanding counsel's timely objection on the record, *fn10 the examiner's written opinion contained no finding concerning promotion. Explaining his approach, the examiner said:
Complainant's representative expressed the opinion that the complaint included a separate allegation that the complainant had not been promoted to a GS-12 level either by career or lateral promotion or by successful bid on numerous GS-12 positions. It appeared to the examiner that complainant had consistently raised the issue of "promotional opportunities" in arguing a theory that a low (performance evaluation) prevented her promotion to a GS-12 level.... Certainly, the agency did not accept or investigate a promotion issue since it did not collect all of the documentary evidence with respect to the numerous GS-12 positions on which complainant has bid. Consequently ... (only) if discrimination were found in the action of marking the respective (performance evaluations) then it could be found that complainant was denied "promotional opportunities." *fn11
Following the examiner's adverse decision, appellant instituted this litigation. II
It is in this procedural setting that FAA makes the remarkable claim that appellant did not exhaust her administrative remedies for nonpromotion because, during the course of the investigation, she did not identify any particular position for which she had unsuccessfully applied, *fn12 and because she did not introduce any evidence to that effect. *fn13 The District Court accepted this argument, and dismissed the prayer for promotional relief. *fn14 We cannot concur.
The flaw in FAA's reasoning is that it assumes that Title VII places the burden on the aggrieved employee to develop the record at the administrative level. We recently made it indisputably clear that agencies charged under Title VII with discrimination should play the major role in this regard. *fn15 The only exhaustion requirement expressly made by Title VII is the employee's duty to "first complain to his employing agency," *fn16 and this much appellant certainly has done. FAA's further argument that appellant did not introduce evidence on the promotional point is similarly misguided. It is a demand that a complaining party in appellant's situation find ways to circumvent evidentiary restrictions imposed by the hearing examiner, *fn17 or be forever barred from asserting in federal court the very claim that the examiner refused to consider. The logical extension of that proposition would empower examiners to foreclose judicial review by declining to take any evidence at all.
FAA also makes a final, related claim. It insists that because appellant's administrative complaint did not expressly aver any effort to obtain promotion to specific job openings, she is precluded from any recovery in court on a theory of promotional bias. *fn18 That argument, like the others, is unpersuasive. When recently faced with a nearly identical situation, we explained:
(The employee's) complaint alleged that the (employer) pursued a policy of not promoting minority officers ... above the GS-12 level, and that he himself had been victimized by his performance evaluation report. It strains credulity to suggest that these straightforward charges were not sufficient to alert an experienced and conscientious equal employment opportunity officer to a ...