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ANTHONY v. BOWEN

April 25, 1986

Grant Anthony, Plaintiff,
v.
Otis R. Bowen,* Defendant



The opinion of the court was delivered by: GREEN

 JOYCE HENS GREEN, Judge

 This case is before the Court on cross-motions for summary judgment. Plaintiff Grant Anthony presently has a Title VII administrative complaint pending before defendant, and an investigation of that complaint is in progress. He seeks an order directing defendant to investigate certain of his claims of illegal discrimination, which he contends defendant has wrongfully refused to investigate, and an order barring defendant from "reopening" an investigation into another claim of discrimination that plaintiff claims has been resolved in his favor. For the reasons set forth below, the Court will grant plaintiff's motion in part and deny it in part, and grant defendant's motion in part and deny it in part.

 I. Background

 At all relevant times, plaintiff, a black male, has been employed as a psychiatric patient care technician at the National Institutes of Health ("NIH"), a branch of the Department of Health and Human Services ("HHS"). On February 16, 1979, plaintiff wrote an equal employment opportunity counselor complaining that he was being discriminated against on the basis of his sex and race. Among other things, he complained about the lack of training programs for promotion of non-professionals such as himself and unfair performance appraisals; he made no mention, however, of the fact that he had not been selected for promotion to any of the eighteen Stride positions for which he believes he was qualified. In an informal complaint filed February 20, 1979, the EEO counselor summarized plaintiff's allegations, identifying the principal acts of discrimination as plaintiff's supervisors' failure to promote him, their use of special leave procedures to harass him, and the agency's failure to provide appropriate training opportunities.

 On June 22, 1979, counselor Robert White filed a report on plaintiff's informal complaint. In a brief description of the complaint, the counselor noted plaintiff's concern that his supervisors' allegedly unfair appraisals of his work had "result[ed] in his not being selected for any of the eighteen [Stride] programs he applied for, thus hindering his professional development." Report of Informal Complaint of Discrimination at 2, Attachment 6 to Defendant's Response to Plaintiff's Request for Admissions. An undated Narrative Report, which presumably accompanied the informal complaint report, indicates that the counselor investigated this allegation to determine whether plaintiff's nonselection to the Stride Program was attributable to his performance ratings. Narrative Report at 1, Attachment 3 to Defendant's Response to Plaintiff's Request for Admissions. On May 10, 1979, prior to the preparation of these reports, plaintiff filed his formal complaint of discrimination. In explaining his charges, he stated, in part, that

 
continuing education designed to further career potential is denied black workers. Since most workers in the GS-621 series are black this denial takes place by means of generally withholding formal advanced training in the series. Additionally, where black people were deemed highly qualified for the Stride Program those positions were cancelled.

 Formal EEO Complaint at 1. As part of his requested relief, plaintiff sought a "program of continuing education in [his] field that will allow advancement and referral to a reasonable program." Id. at 2. The complaint, however, does not expressly refer to plaintiff's failure to be promoted to any of the eighteen Stride positions as an act of discrimination.

 On August 9, 1979, Morris Williams, an EEO specialist, wrote Nancy Bradley of the NIH Labor Management Branch concerning plaintiff's charges of discrimination. In a synopsis of the complaint, Williams reiterates plaintiff's contention that unfair appraisals of his work "resulted in his not being selected for any of the eighteen positions he applied for under the Stride Program, thus, hindering his professional development." See Plaintiff's Request for Admissions, Attachment C. Two Statement of Allegations forms, one prepared by the EEOC investigator and the other by plaintiff's counsel, specifically mention plaintiff's nonselection for the eighteen Stride positions. See id., Attachments G & H. *fn1" The EEOC's August 12, 1981 Recommended Disposition of plaintiff's complaint notes that plaintiff applied for eighteen Stride positions, but the report only discusses the five positions for which plaintiff believed he was highly qualified. See id., Attachment I.

 In its Recommended Disposition, the EEOC concluded that there was "reasonable cause" to believe that the special leave procedures NIH imposed upon plaintiff were motivated by racial discrimination, but found no probable cause to believe that plaintiff's nonselection to five of the Stride positions was the result of discrimination. The report made no mention of the remaining thirteen Stride positions for which plaintiff applied. The Recommended Disposition was automatically adopted by NIH following the lapse of thirty days; nevertheless, NIH formally adopted the EEOC report as its own on April 5, 1982. By letter dated August 21, 1982, plaintiff exercised his rights under 29 C.F.R. § 1613.218 and requested a hearing with respect to the Stride issues only. On December 16, 1982, the hearing examiner remanded the matter to the agency because it failed to provide plaintiff with a letter accepting or rejecting issues for investigation and because the examiner deemed the agency's investigation inadequate. See Plaintiff's Request for Admissions, Attachment L. On remand, the agency accepted for investigation only four of the eighteen nonselection issues, and reopened for further investigation the special leave issue.

 II. Discussion

 A. The Scope of the Investigation

 Defendant takes the position that it has not improperly limited the scope of its investigation, but rather is investigating those issues raised in plaintiff's May 10, 1979 complaint. The only reference to the Stride Program in the complaint is the allegation that "where black people were deemed highly qualified for the stride program those positions were cancelled." Defendant therefore accepted for investigation plaintiff's nonselection to the four positions for which he was highly qualified. As the other fourteen positions were not mentioned in the complaint, they were not accepted.

 Plaintiff, on the other hand, argues that the agency had notice that all eighteen positions were at issue by virtue of the EEO counselor's report, the EEO Statement of Allegations forms, and the Williams' memorandum to NIH's Labor Management Branch. In addition, governing regulations require that before an issue may be raised in a formal complaint, it must first be brought to the attention of the EEO counselor. 29 C.F.R. § 1613.214(a)(1). Plaintiff contends that the agency, in order to insure compliance with this requirement, had to review the EEO reports and memoranda and thus had to know that all eighteen positions were at issue. Finally, plaintiff believes ...


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