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COLES v. PENNEY

April 7, 1978

MELVIN COLES, Plaintiff,
v.
GENERAL HOWARD W. PENNEY, et al., Defendants



The opinion of the court was delivered by: OBERDORFER

 Plaintiff Melvin Coles brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e, et seq., as amended by the Equal Employment Opportunity Act of 1972, alleging employment discrimination by the Defense Mapping Agency. Plaintiff alleges a pattern and practice of discrimination by defendants beginning in 1955 and continuing to the present in failing to promote him on a number of occasions, even though he applied for the promotions and was allegedly qualified for them. Plaintiff has worked his way up to his present GS-13 rating through a non-competitive promotion plan and classification upgrading. He alleges, however, that he has never once been awarded a promotion through the merit promotion plan.

 Plaintiff filed an administrative complaint of discrimination in 1970, which alleged discrimination with respect to a specific promotion incident, and also a continuing pattern or practice of discrimination throughout his term of employment at the Defense Mapping Agency. The 1970 complaint was timely filed with respect to the specific promotion incident, which incident has been labeled as the P.D. # 202-70 claim. Plaintiff filed a second timely administrative complaint in 1972, but the specific allegations of this complaint have been withdrawn by plaintiff during this lawsuit. Plaintiff was denied relief in the administrative proceedings (with respect to both the 1970 and the 1972 complaints) and this action was timely filed. See Coles v. Penny, 174 U.S. App. D.C. 277, 531 F.2d 609 (1976).

 Now before the Court is defendants' motion for partial summary judgment. Defendants concede that the 1970 complaint was timely filed with respect to P.D. # 202-70, and that plaintiff thus alleges a valid claim with respect to this individual incident. However, defendants assert that because plaintiff failed to file (and have pending on the date of the 1972 amendments to Title VII) an administrative complaint with respect to any of the promotion incidents prior to P.D. # 202-70 within the applicable time limit for such a filing, a cause of action under Title VII, arising from any of these incidents, is now time barred. In addition, defendants assert that a cause of action arising from the specific promotion incidents subsequent to the 1970 complaint is barred because plaintiff failed to file a timely administrative complaint with respect to any of these incidents and thus has failed to exhaust his administrative remedies.

 With respect to plaintiff's position that his allegation of a continuing pattern and practice of discrimination makes these prior promotion incidents actionable at any time, defendants contend that regardless of what the rule may be for true "continuing violations," plaintiff does not present such a case.

 In opposition to defendants' motion, plaintiff contends that, although an action on any one of these incidents would be untimely, the 1970 administrative complaint and the pleadings in this action as well, do in fact allege the sort of "continuing violation" of plaintiff's rights that are actionable at any time. Plaintiff reasons that the alleged discriminatory failure to promote him was continuous from 1955 to the present, as evidenced by the specific incidents of alleged discrimination, and that this continuum of discrimination is in itself a present violation of Title VII which opens up the full course of plaintiff's employment to administrative and judicial scrutiny.

 In United Air Lines, Inc. v. Evans, 431 U.S. 553, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977), a sex discrimination case in which the plaintiff was attempting to avoid an untimeliness problem by alleging a continuing violation, the Supreme Court stated that

 
A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences. . . . [The] emphasis should not be placed on mere continuity; the critical question is whether any present violation exists. 431 U.S. at 558 (emphasis in the original).

 The Court concluded that plaintiff could avoid the untimeliness problem only by attacking the seniority system itself, which caused the present effect of the past discrimination. The Court found that the seniority system was neutral in its operation, and affirmed dismissal of the case by the District Court.

 Under United Air Lines, there is no doubt that a Title VII action on any of the alleged incidents of discrimination themselves, from 1955 to the present, excepting the incident involving P.D. # 202-70, is time barred because no timely administrative complaints were filed with respect to these incidents. This is true regardless of whether plaintiff presents the incidents individually or en masse. As defendants have persistently argued, each alleged incident of discrimination is really a disparate treatment claim, and to lump all of these claims together does not change their character into something other than disparate treatment claims. The same policies which justify the requirement of a timely filing of an administrative complaint in any individual case apply with equal force when many individual incidents are raised together. Defendants would still be faced with the possibility of having to rebut a prima facie case with respect to each incident, and would run into the same problems of lost evidence, faded memories, and witnesses that have disappeared. Defendants in fact assert that the records for most of the promotion actions raised by plaintiff have been discarded in the regular course of business. In addition, the benefit of a well developed administrative record is no less important to a court reviewing a number of alleged incidents of discrimination, than when reviewing only a single incident.

 The cases cited by plaintiff in support of his contention that past incidents of alleged discrimination can properly be raised in this suit to prove his continuing pattern and practice claim state nothing more than the principles recognized in United Air Lines that a continuing pattern or practice suit is timely filed if a plaintiff is challenging a present practice or system, and that a plaintiff may prove past injury caused by this illegal system and thereby win a back pay award if he first succeeds in the "violation stage" of the proceedings.

 For example, in Macklin v. Spector Freight Systems, Inc., 156 U.S. App. D.C. 69, 478 F.2d 979 (1973), one of the cases on which plaintiff primarily relies, the Court states that

 
"the claim that the 'action was not timely commenced is not well taken because one isolated incident is not being challenged but rather an entire allegedly discriminatory system.'" 478 F.2d at 987.

 In Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975), the court stated in the context of reviewing ...


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