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RAYMOND v. UNITED STATES

March 8, 1985

Raymond J. MILLER, et al., Plaintiffs,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: GREENE

 This Title VII suit, *fn1" was originally filed as a class action. However, it became quickly apparent that not only was there no class within the meaning of the applicable rules *fn2" but that many of the individuals named in the complaint had never heard of the lawsuit and had no intention of participating therein. *fn3" Additional plaintiffs were dismissed for their failure to comply with such requirements as the filing of timely notice, failure to exhaust administrative remedies, or failure to comply with other jurisdictional prerequisites. *fn4" Just recently, and again now (see Part IV infra), claims had to be dismissed because particular plaintiffs refused to participate in legitimate discovery. *fn5"

 The lawsuit is now in a procedural posture where, in the context of government motions to dismiss and for summary judgment, the remaining claims must be examined in some detail. It appears that, once again, almost all of plaintiffs' claims challenged by the government are substantially flawed -- procedurally, substantively, or both.

 I

 The government has moved for summary judgment with respect to the claims of eight of the remaining plaintiffs. *fn6" That motion will be granted.

 29 C.F.R. ยง 1613.214(a)(i) permits an employee who believes that he has been discriminated against to bring the fact of that discrimination to the attention of the agency's EEO counselor within thirty days. *fn7" It is well established that as a general matter a lawsuit alleging such discrimination may be maintained only if the employee has complied with that thirty-day filing requirement. Milton v. Weinberger, 207 U.S. App. D.C. 145, 645 F.2d 1070, 1074-77 (D.C.Cir.1981); Miller v. Smith, 584 F. Supp. 149, 151-52 (D.D.C.1984). The reasons for that requirement are obvious. It stems from the "congressional design to vest in the federal agencies and officials engaged in hiring and promoting personnel 'primary responsibility' for maintaining nondiscrimination in employment." Kizas v. Webster, 227 U.S. App. D.C. 327, 707 F.2d 524, 544 (D.C.Cir.1983). Moreover, absent a start in the administrative process, there can be no exhaustion of that process -- a condition precedent to the filing of a discrimination suit under Title VII. Id. See also Brown v. General Services Administration, 425 U.S. 820, 832, 96 S. Ct. 1961, 1967, 48 L. Ed. 2d 402 (1976); Milton v. Weinberger, supra, 645 F.2d at 1074-77; Hoffman v. Boeing, 596 F.2d 683, 685 (5th Cir.1979).

 In this case, all the plaintiffs filed substantially identical form complaints with EEOC personnel on November 3, 1976. *fn8" Yet, with the exception of one plaintiff, Edward Morris, the acts of discrimination of which they complained occurred nowhere near the thirty-day period preceding that date: some of the plaintiffs rely on actions of the Marshal's Service which occurred years earlier (typically in the early 1970s) or years later (as late as last year). *fn9" However, none of the plaintiffs filed administrative complaints within the thirty days after these subsequent alleged acts of discrimination occurred; by and large the plaintiffs simply rely on their administrative complaint of November 1976 as the jurisdictional prerequisite for their lawsuit. *fn10" But that complaint, as noted above, is untimely and entirely insufficient.

 Plaintiffs attempt to overcome this infirmity by reliance on the theory of continuing discrimination, arguing that the "strict application of any time limits set forth in the Federal Regulations is not appropriate here as the Plaintiffs have been subjected to a continuing course of discriminatory conduct. . . ." Memorandum of Points and Authorities at 9. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977).

 II

 It is useful at this juncture to analyze the posture of this case. The government has moved for summary judgment, and the question therefore is whether there are genuine issues of material fact which would preclude the granting of that motion. One of the elements of plaintiff's case is the submission of timely administrative complaints of discrimination, but, as discussed supra, they cannot meet that requirement. The next level of inquiry, therefore, must be whether a systematic pattern of discrimination existed which would excuse the failure to file timely complaints. The existence of such a pattern has also been placed in issue by the government's motion, and the Court must now inquire whether there is a genuine issue of material fact with respect to the existence, not of individual acts of discrimination, but of systematic, continuing discrimination. It is to that question that the Court now turns.

 Plaintiffs, however, have not identified, through the submission of factual evidence, any specific employment practice or policy of the United States Marshal's Service relating to promotions, *fn11" special assignments, education and training programs, or discipline which existed during the limitations period, *fn12" or which exist today, that are racially discriminatory. Instead, they cite to a number of instances where they did not receive certain benefits and argue that this proves that the Marshal's Service is engaged in a continuing course of discriminatory conduct. *fn13"

 The record before the Court reveals that each of the promotion decisions which plaintiffs challenge involved merit promotions for which specific application had to be made, and the disciplinary decisions, special assignments, and selections for education and training programs were likewise made on a case-by-case basis and, by their very nature, they were not continuing. *fn14" These discrete acts do not fit the continuing violation theory, McKenzie v. Sawyer, 221 U.S. App. D.C. 288, 684 F.2d 62, 72 (D.C.Cir.1982); Stoller v. Marsh, 221 U.S. App. D.C. 22, 682 F.2d 971, 975 (D.C.Cir.1982); Milton v. Weinberger, supra, 645 F.2d at 1076-77; Klapac v. McCormick, 205 U.S. App. D.C. 383, 640 F.2d 1361, 1366 (D.C.Cir.1981), especially where, as here, no present violation exists. United Air Lines, Inc. v. Evans, supra, 431 U.S. at 557-58, 97 S. Ct. at 1888-89.

 To be sure, the systematic denial of promotions or other systematic discriminatory personnel actions may, in appropriate circumstances, be regarded as the maintenance of a discriminatory system and, on that basis, a plaintiff may sweep into his proof employer activities which would otherwise be untimely. Fisher v. Procter and Gamble Manufacturing Co., 613 F.2d 527, 543 (5th Cir.1980); Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876, 881 (8th Cir.1977). It is also clear, however, that the decision on whether the case is, in fact, one of continuing discrimination, must be ...


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