may not be litigated as discrimination claims in this case. Id. at 7-8.
On the other hand, the plaintiffs assert that Title VII's requirement that a formal administrative complaint be filed within thirty calendar days of an agency's alleged discriminatory action, does not apply to this case, because "there has been a continuing pattern of discriminatory practices." Opposition to Defendant's Motion to Dismiss (" Opp."), at 2 (emphasis added). This assertion is consistent with the Complaint's conclusory allegation that "the effect of the policies and practices complained of . . . has been to deprive plaintiffs of equal employment opportunities and otherwise adversely affect their status as employees because of their supervisors' discriminatory actions relating to their race, sex and age." Complaint para. 9 (emphasis added).
A precondition to suit under Title VII is that a plaintiff first seek relief through the agency that has allegedly fostered the discrimination. Brown v. General Services Administration, 425 U.S. 820, 832, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976). "As a general rule, a Title VII claim may be premised only upon specific instances of misconduct of which the . . . [EEOC] is apprised within the statutorily-prescribed time." Shehadeh v. Chesapeake & Potomac Telephone Co., 193 U.S. App. D.C. 326, 595 F.2d 711, 724 (D.C. Cir. 1978) (footnote omitted). "When, however, a continuing discriminatory employment practice is alleged, the administrative complaint may be timely filed notwithstanding that the conduct impugned is comprised in part of acts lying outside the charge-filing period." Id. (emphasis added) (footnote omitted). In this context, "it is the ongoing program of discrimination, rather than any of its particular manifestations, that is the subject of attack." Id. at 724-25.
In the present case, plaintiffs Graham and Olds filed timely EEO complaints in response to the December 12, 1980 RIF. Both of their administrative complaints alleged race, sex, and age discrimination on the part of the Zoo's Office of Animal Management. In addition, the plaintiffs alleged only that their jobs were "'abolished' to make room for young white people -- and effectively to eliminate all black supervisors." (Emphasis added.) Although it is evident that the plaintiffs were referring to the RIF in these complaints, it is not clear, given these bare-boned allegations, whether, by including the phrase "effectively to eliminate all black supervisors," the EEOC was put on notice of the continuing violation theory that plaintiffs' enunciate in their district court complaint. Graham and Olds assert vehemently, but without documentation,
that "the [pre-RIF] incidents of discrimination in plaintiffs' [district court] complaint were definitely included in their EEO complaints." Opp., at 3. This assertion is almost as bare-boned as the administrative complaints themselves were.
Nonetheless, in the context of a motion to dismiss and in consideration of the lack of an administrative record in this case, see supra note 5, the Court must construe the contentions of the plaintiffs with respect to the notice issue in the light most favorable to the plaintiffs. Accordingly, partial dismissal is not warranted because of the plaintiffs' alleged failure to articulate their continuing violation theory in their respective EEOC complaints.
A continuing violation analysis must go beyond this notice issue, however. A critical question is whether a present violation existed when the administrative complaints were filed -- i.e., a violation occurring within the thirty-day filing period. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977); Milton v. Weinberger, 207 U.S. App. D.C. 145, 645 F.2d 1070, 1075 (D.C. Cir. 1981). In the instant case, the plaintiffs filed their EEOC complaints on December 19, 1980 -- seven days after the RIF went into effect. They were, therefore, filed within Title VII's prescribed time frame. Thus, assuming Graham and Olds can "prove" that the RIF discriminated against them (a "present" violation), they have overcome this hurdle of a continuing violation claim.
In addition, the continuing violation allegations must "connect" the remote claims to those for which the pertinent administrative claims were timely filed. See id. at 1077. Absent such connecting allegations, such remote claims are now time-barred. Id. In this light, the defendant argues as follows:
Plaintiffs allege that they were treated discriminatorily by their immediate supervisors prior to the abolishment of their jobs. There is, however, no relationship between this alleged treatment and the decision by higher management officials [at the Smithsonian] to abolish the foreman position because plaintiffs' immediate supervisors had no responsibility for this policy decision. Plaintiffs are thus attempting to make a "continuing violation" theory case by sheer volume of events, rather than by attacking a single, systematic discrimination policy . . . .
Motion to Dismiss, at 9 (emphasis added). The defendant relies on Milton, 645 F.2d at 1076, which held that a plaintiff may not seek relief from "specific, perhaps unrelated" claims of discrimination that are time-barred under Title VII, by masking them in the guise of a continuing violation for purposes of circumventing the thirty-day limitations period.
This point is well taken but not wholly accepted by the Court. It is difficult to conceive of how the plaintiffs can demonstrate a nexus between the 1980 RIF, an agency action taken at the direction of "higher-ups" at the Smithsonian, and the discriminatory conduct of the plaintiffs' immediate supervisors, which allegedly occurred prior to the RIF. To date, the plaintiffs have proffered no evidence, by way of affidavits or exhibits, to indicate the possibility of such a nexus. Nevertheless, in the context of a motion to dismiss under Rule 12 (b)(6), the Court must evaluate the allegations of the complaint in the light most favorable to the plaintiffs. Given the inclusion by Graham and Olds of the term "policies and practices" in Paragraph No. 9 of the Complaint, supra, the Court must conclude that the plaintiffs have suggested a "connection" and thereby sufficiently pled a continuing violation case, so that their pre-RIF allegations of discrimination survive the defendant's motion for partial dismissal. Cf. Shehadeh, 595 F.2d at 724 n.66 (EEOC "'jurisdiction vests when it receives a charge which merely alleges the current existence of an unlawful policy'") (quoting EEOC Compl. Man. (CCH) P4102-03, §§ 208.1-208.2 (1976)). Accordingly, the defendant's motion is denied in this regard.
B. Post-RIF Allegations: Continuing Violation
Paragraph No. 7e. of the district court complaint alleges the following post-RIF incidents:
[Graham] applied for the position of head keeper at the National Zoological Park's research facility in Front Royal, Virginia, and although he had retention rights to the position, he was not notified that the position was available, having learned that such a position would become available from other sources, and he was not selected for the position.