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FLEISCHHAKER v. ADAMS

August 27, 1979

SERENA M. FLEISCHHAKER, Plaintiff,
v.
BROCK ADAMS, Defendant



The opinion of the court was delivered by: OBERDORFER

MEMORANDUM

This is an employment discrimination case brought under title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 (1976), in which plaintiff alleges discrimination on the basis of sex. Prior to her retirement on July 31, 1975, plaintiff Serena M. Fleischhaker was a Visual Information Specialist (VIS) at the GS-11 level with the Analysis & Supply Branch, Programs Management Staff, Systems Research & Development Service (SRDS) of the Federal Aviation Agency (FAA). Plaintiff seeks a retroactive promotion to the GS-15 level, attorneys' fees and costs and other injunctive and declaratory relief. The case is now before the Court on defendant's motion for summary judgment.

 In its Memorandum and Order of July 25, 1978, the Court granted defendant's motion to dismiss as to events which occurred prior to June 24, 1972, the date when the amendments to title VII on which plaintiff based her case were enacted. The Court concluded that the case did not involve continuous discrimination, but only discrete instances of allegedly discriminatory actions. As to events after June 24, 1972 but before May 11, 1975, the date of the earliest allegedly discriminatory action which had been accepted by the FAA for processing through its administrative procedures, the Court reserved judgment, finding unresolved one issue: whether the 1972-75 events could be actionable because plaintiff did not know the time limitation of 30 days imposed by 5 C.F.R. § 713.214(a)(1)(i) prior to her contact with an employment opportunity counselor in June 1975. If so, the time limitation would be waived under Civil Service regulations which require an extension of such limits where

 
the complainant shows that he was not notified of the time limits and was not otherwise aware of them . . . .

 5 C.F.R. § 713.214(a)(4)(ii).

 In addition to the issue of plaintiff's notice about the time limitation, three issues, which had been considered in the administrative process, were found to survive the motion to dismiss; Memorandum and Order of July 25, 1978, 8-11:

 (2) whether the fact that plaintiff was rated in oral communication skill was discriminatory, I. e., whether similarly situated males were evaluated on that skill and by the same criteria;

 (3) whether defendant acted in a discriminatory fashion by delaying the grant of a reward to plaintiff;

 (4) whether defendant discriminated against plaintiff in failing to promote her to the GS-12 level. Arguably subsumed within this last issue was the question of whether a failure to promote might have resulted from a denial to plaintiff of opportunities to perform work for which she was qualified and which would have warranted a GS-12 rating. *fn1"

 Based on the affidavits, exhibits and other evidence in the record, including the admissions of the parties, and after oral argument, the Court holds that there is no genuine issue of fact as to any of the above questions which survived the motion to dismiss. The undisputed material facts warrant the entry of summary judgment for defendant. The following findings of fact and conclusions of law support that holding.

 FINDINGS OF FACT

 1. Plaintiff was subject to a classification audit on June 18, 1974; the audit classified her as a GS-11 Visual Information Specialist. Statement of Material Facts as to Which Defendant Contends There Is No Genuine Issue, filed November 27, 1979, para. 3.

 2. Plaintiff received a memorandum setting out the results of her audit no later than July, 1974; Answers to Defendant's Second Set of Interrogatories, A.5(c).

 3. Plaintiff never appealed this audit pursuant to FAA regulations; para. 25, Amended Complaint of Answers to Defendant's First Set of Interrogatories, 32(c).

 4. Plaintiff first contacted an Equal Employment Opportunity (EEO) counselor in June 1975; Amended Complaint of January 9, 1978, para. 15.

 5. After efforts to resolve plaintiff's complaint proved fruitless, plaintiff filed a formal complaint of sex discrimination on September 8, 1975. By letter of October 21, 1975, plaintiff was informed that the following allegations had been accepted for investigation:

 
The allegation that you were discriminated against because of your sex when your May 1975 (Performance Evaluation Record) was rated in Part IV, Skill in Oral Communication; when you did not receive an award for the quality and quantity of work completed during FY 75; and when you were not promoted to the GS-12 level due to your level of work performance during the past year.

 Defendant's Exhibit IX.

 6. Plaintiff appealed the decision to reject portions of the complaint to the Civil Service Appeals Review Board. The Board sustained the rejection on April 29, 1976; Defendant's Exhibit X.

 7. Beginning in 1972, all FAA employees in both the 800 Independence Avenue and the Trans Point locations were furnished with copies of FAA Order 3300.19 dealing with EEO counseling. The order was also posted in prominent places throughout both locations; Affidavit of Barbara A. Hinton.

 8. FAA Order 3300.19 included notice that a discrimination complaint had to be brought to the attention of an EEO counselor within 30 days of the alleged act of discrimination; Id.

 9. Beginning in 1972, posters were prominently displayed on each floor of both buildings, informing employees of this 30-day requirement for discrimination complaints; Id.

 10. The present posters, measuring about 3 feet by 1.5 feet, contain essentially the same legend as the posters ...


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