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STOCKTON v. HARRIS

May 17, 1977

VILMA P. STOCKTON, Plaintiff
v.
PATRICIA R. HARRIS, et al., Defendants



The opinion of the court was delivered by: WADDY

 The plaintiff, Vilma P. Stockton, brings a claim of racial discrimination against her federal employer, the Department of Housing and Urban Development (HUD). Although jurisdiction has been alleged under the 5th Amendment to the United States Constitution, Executive Order 11478, 42 U.S.C. 2000e-16, and several other statutes, Section 717 of the Civil Rights Act of 1964, as added by Section 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 "provides the exclusive judicial remedy for claims of discrimination in federal employment". Brown v. General Services Administration, 425 U.S. 820, 835, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976).

 This action is before the Court on plaintiff's motion for summary judgment, defendants' opposition thereto and cross-motion to dismiss for lack of subject matter jurisdiction and failure to exhaust administrative remedies, and plaintiff's opposition to said motion.

 The plaintiff is a black woman who, prior to June 1972, was and is currently employed by HUD. In June 1972 the plaintiff asked that the agency reclassify her job from grade GS-5 to grade GS-6. When her request was denied, plaintiff transferred to another position within the agency which offered the possibility of advancement in her unit. *fn1" On May 17, 1974 she was told by a co-worker that her former position had been reclassified by the agency although it still retained substantially the same duties and responsibilities as when held by plaintiff. The reclassification had occurred on November 14, 1973. At that time a notice of the reclassified position vacancy was circulated to all employees of the department in accordance with HUD's Merit Staffing Policies and Procedures. *fn2" The vacancy was filled by a black female. *fn3"

 On May 20, 1974, three days after she claims to have learned of the upgrade, plaintiff contacted an Equal Employment Opportunity Counselor concerning the failure to upgrade the position while she retained it. She contended that the refusal of the agency to reclassify her former position when she requested it in June, 1972 was racially discriminatory. She filed a formal complaint of racial discrimination with HUD on June 17, 1974, within 30 days after she learned of the subsequent upgrade, but nearly two years after the denial of her request for job reclassification.

  Plaintiff received a notice dated September 23, 1974, from HUD's Deputy Assistant Secretary, Vincent J. Hearing, stating that her complaint had been accepted and that he had requested the Assistant Secretary for Equal Opportunity to investigate her complaint. *fn4" Her complaint was referred for investigation on November 21, 1974. In March, 1975, plaintiff was informed of the Departmental regulation allowing rejection of a complaint not filed within the required time limits and was asked to explain the reasons why she had not filed a timely complaint. The agency pointed out that pursuant to HUD regulations, the time limits for filing a complaint can be extended where it is shown that the complainant was prevented by circumstances outside of his or her control from submitting the matter within the designated time periods, or for any other reason considered sufficient by the Equal Employment Opportunity Officer. *fn5" In response to the HUD request, plaintiff stated that she considered the matter causing her to believe she had been discriminated against as having occurred on May 17, 1974, when she learned of the reclassification. This reason was not considered sufficient by the agency EEO Officer. On June 9, 1974, plaintiff's complaint was rejected by the agency for not being timely filed. In an appeal before the Appeals Review Board of the Civil Service Commission, on February 18, 1976, the agency decision was affirmed. This suit was filed March 15, 1976, within 30 days of receipt of the Commission's decision.

 Plaintiff contends that the agency's failure to reclassify her former position upon her request was racially discriminatory. In justifying her long delay in filing, she refers to the text of the Civil Service Commission regulation found at 5 C.F.R. § 713.214(a)(1)(i) (1976) which states that an agency may accept a complaint only if:

 
"The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him [her] to believe he [she] had been discriminated against within 30 calendar days of the date of that matter, or, if a personnel action, within 30 calendar days of its effective date;".

 Plaintiff contends that the "matter causing her to believe she had been discriminated against" occurred on May 17, 1974, when she learned of the position upgrade. Plaintiff also maintains that acceptance of the complaint was an acknowledgment by the agency that the complaint was timely filed and/or that the Department had granted her an extension of time to file under pertinent regulations.

 The Government's position -- that plaintiff failed to properly exhaust administrative remedies -- is based on HUD regulation, 24 C.F.R. § 7.31(a)(1) (1976). That regulation provides in part:

 
". . . The Department may accept a complaint only if the complainant:
 
(1) Brought to the attention of the EEO Counselor the matter causing the complainant to believe he has been discriminated against within 15 calendar days of the date of that matter; or, if a personnel action, within 15 calendar days of its effective date;".

 The Government contends that the refusal to reclassify the plaintiff's position was clearly a personnel action within the scope of the regulation, and that therefore plaintiff was required to report the alleged discriminatory action to her EEO Officer within 15 days. The Government also points to plaintiff's failure to allege continuing discrimination. Finally, it contends that the agency would be prejudiced by being forced to process the complaint at such a late date, and emphasizes that there had been no deceit on the part of HUD.

 At the threshold, the Court must determine which event starts the regulatory time-table running -- the alleged discriminatory act itself or plaintiff's knowledge of that act. It is clear to this Court that in order to satisfy the jurisdictional prerequisites of timeliness, plaintiff must complain to the EEO Counselor within 30 days of the alleged discriminatory ...


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