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GRAHAM v. ADAMS

June 9, 1986

Caldwell Graham and Tony Olds, Plaintiffs
v.
Robert M. Adams, Secretary of the Smithsonian Institution, Defendant


Thomas F. Hogan, United States District Judge.


The opinion of the court was delivered by: HOGAN

Thomas F. Hogan, United States District Judge

 Plaintiffs Caldwell Graham and Tony Olds are black males who went to work in 1951 and 1955, respectively, for the National Zoological Park ("the Zoo"), a division of the Smithsonian Institution ("the Smithsonian"). *fn1" Graham was 64 years old and Olds was 53 when they filed this employment discrimination action. The plaintiffs allege race, sex, and age discrimination on the part of officials of the Zoo under 42 U.S.C. §§ 2000e--2000e-17 ("Title VII"). *fn2"

 In response to a reduction-in-force ("the RIF") notice issued by the Smithsonian on October 30, 1980, plaintiff Graham accepted under protest an offer of reassignment from his position as "Animal Keeper Foreman" (WS-7706-9, Step 5) to the position of "Animal Keeper Leader" (WL-7706-9, Step 5) at the Zoo. Although plaintiff Olds, who was also an Animal Keeper Foreman when the RIF notice was issued, was offered the same reassignment opportunity, he chose to retire from his job at the Zoo. The plaintiffs' former positions were "abolished" by the RIF.

 The RIF became effective on December 12, 1980. The plaintiffs both filed timely administrative complaints on December 19, 1980, challenging the Smithsonian's action. Although the Smithsonian's Equal Employment Opportunity Commission ("the EEOC") conducted hearings during the next several years, it never reached a decision on the plaintiffs' discrimination claims. Because the EEOC failed to take agency action within 180 days from the date the administrative complaints were filed, see 42 U.S.C. § 2000e-16(c), Graham and Olds filed suit in this forum on January 22, 1985. *fn3" The plaintiffs seek "to be reinstated in the position[s] of animal collectors with back pay . . . [and] training at the defendant's expense to enable them to compete for advancement." Complaint, pp. 3-4.

 The matter before the Court concerns the defendant's motion to dismiss the Complaint (or for partial dismissal thereof) for failure to state a claim upon which relief can be granted, under Rule 12(b)(6) of the Federal Rules of Civil Procedure. In consideration of this motion, plaintiffs' opposition, and defendant's reply ("Supplemental Opposition") thereto, the Court concludes that dismissal (or partial dismissal) is inappropriate.

 DISCUSSION

 The defendant's motion to dismiss takes a three-pronged attack on the plaintiffs' action. First, the defendant points out that the "complaint . . . lists a litany of alleged incidents of discrimination other than the [RIF's] abolishment of the[ir] head keeper [ i.e., Animal Keeper Foreman] positions." Memorandum in Support of Defendant's Motion to Dismiss, or in the Alternative, for Partial Dismissal (" Motion to Dismiss ") at 2 (citing Complaint paras. 7 & 8). The defendant contends that "by their own admission, neither plaintiff contacted or filed an EEO administrative complaint for any of these incidents -- some of which allegedly occurred up to ten years before the RIF." Motion to Dismiss, at 2 (emphasis added). Thus, the defendant concludes that "these alleged incidents are . . . outside the scope of this litigation because they have not been exhausted administratively." Id.

 Finally, in regard to the merits of the plaintiffs' case, the defendant contends, in essence, that the complaint fails to state a claim, because, in conjunction with the 1980 RIF, the plaintiffs "were offered substantially equivalent positions with no loss of grade or pay for two years." Id. at 2. In plaintiff Olds' case, the defendant argues the following:

 
his failure to mitigate damage [by refusing to accept the Animal Keeper Leader position and, instead, choosing to retire,] deprives him of a claim for which relief can be granted before this court, . . . because, had he accepted defendant's unconditioned offer, he would have retained his salary and grade performing substantially equivalent work and have been eligible for other jobs for which he was qualified that were open only for current Smithsonian employees.

 Id. at 5.

 A. Pre-RIF Allegations: Continuing Violation

 In Paragraph No. 7 of the Complaint, plaintiff Graham asserts that the defendant discriminated against him because of the following pre-RIF incidents:

 
a. In . . . [Graham's] position as head keeper [, i.e., Animal Keeper Foreman], his supervisor, Miles Roberts, directed him not to supervise the white female keepers who were under his supervision.
 
b. In . . . [Graham's] position as head keeper, he was continually omitted from the chain of command with the result [being] that his position of head keeper, although ...

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