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SCOTT v. CLAYTOR

June 17, 1978

Francis T. SCOTT, Jr., Plaintiff,
v.
W. Graham CLAYTOR, Defendant



The opinion of the court was delivered by: GASCH

MEMORANDUM

Plaintiff, a black male, has brought this action pursuant to Title VII of the Civil Rights Act of 1964, As amended, 42 U.S.C. ยง 2000e-16(c) (Supp. V 1975). Presently before the Court is defendant's motion to dismiss the complaint in part and plaintiff's motion to have the entire case remanded to the agency with directions to process plaintiff's complaint administratively.

 I. Background.

 Plaintiff has been employed by the United States Naval Academy since February, 1968, when he was hired as a GS-7 computer operator. Just fourteen months later, in April, 1969, he was promoted two grades to GS-9 computer programmer. Thereafter, he received regular within-grade step increases through April, 1974.

 In September, 1972, plaintiff applied for a GS-12 computer specialist vacancy, but he was not selected. In August, 1973, he applied for a GS-11 supervisory computer analyst vacancy, but again he was not selected. Shortly thereafter plaintiff filed an administrative complaint of discrimination. That complaint was heard at various agency levels up through the Navy Employee Appeals Review Board (NEARB). Each level concluded that no discrimination had occurred, and in July, 1974, the NEARB notified plaintiff of his additional appeal rights and the time within which any further appeal had to be filed. Plaintiff declined to exercise those rights, however.

 In April, 1975, plaintiff was denied a within-grade step increase because, according to his supervisor, his performance was below "an acceptable level of competence." The Secretary of the Navy denied plaintiff's appeal of that decision, so he then appealed to the Civil Service Commission's (CSC) Federal Employee Appeals Authority (FEAA), which also denied it in October, 1976. The Civil Service regulations require the head of the agency to review denials of step increases within 52 weeks of the denial. *fn1" After such a review, plaintiff again was told in May, 1976, that his work was unacceptable, and the step increase continued to be withheld. This denial is the subject of a separate discrimination complaint that is still before the agency.

 During this period when his step increase was being denied, plaintiff nevertheless continued his efforts to get promoted. In October, 1975, he applied for another GS-11 vacancy, this time a computer programmer position. Someone else was selected, however. In July 1976, he applied for either of two computer systems analyst vacancies, also at a GS-11 level. Again, he was not selected.

 On March 30, 1977, plaintiff was informed for the third time that his performance was below par and that his step increase was still being withheld. On June 2, 1977, plaintiff filed an administrative complaint of racial discrimination, alleging:

 
1. failure to be promoted to a GS-11 since 1969,
 
2. failure to be promoted to a GS-12 since 1971,
 
4. lack of counseling,
 
5. charges of inadequate training as a pretext for denying ...

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