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SHEPARD v. ADAMS

May 8, 1987

Lottie B. Shepard, Plaintiff
v.
Robert M. Adams, Defendant


Thomas F. Hogan, United States District Judge.


The opinion of the court was delivered by: HOGAN

Thomas F. Hogan, United States District Judge.

 Plaintiff, a black woman, brought this action alleging discrimination on the basis of race and color in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. Plaintiff, a secretary at the Office of Printing and Photographic Services ("OPPS") at the Smithsonian Institution, is in a noncareer-ladder position at a GS-6 grade. Plaintiff claims that from 1980 to 1985 defendant discriminated against her in a series of personnel actions. *fn1" This matter is presently before the Court on defendant's motion to dismiss or, in the alternative, for partial summary judgment. At issue are plaintiff's claims concerning defendant's failure to promote her in 1980, 1982 and 1984, the issuance of the letter of reprimand and the agency's failure to give her a cash award for assuming additional duties. *fn2" Upon consideration of defendant's motion, the opposition thereto and counsel's representations at oral argument, the Court concludes that defendant's motion with respect to the alleged failure to promote plaintiff in 1980, 1982 and 1984 must be denied at this juncture in the case. The Court, though, shall dismiss plaintiff's claims regarding the letter of reprimand and the cash award.

 DISCUSSION

 A complaint may be dismissed for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12 only where it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" in this Court. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957), cited in Doe v. United States Department of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1102 (D.C. Cir. 1985). For purposes of a motion to dismiss, the complaint is to be construed in the light most favorable to the plaintiff, and all well-pled allegations of fact and reasonable inferences therefrom are to be taken as true. Id.

 Failure to Promote Plaintiff in 1980 and 1982

 Defendant argues that plaintiff's allegations with respect to the agency's failure to promote her in 1980 and 1982 should be dismissed for failure to exhaust administrative remedies. The regulations corresponding to Title VII require an aggrieved employee to initially consult with an Equal Employer Opportunity Counselor within 30 days of an alleged violation to seek a resolution of the matter. 29 C.F.R. §§ 1613.213 (a); 1613.214. An agency may extend the time limits if the employee was not notified or was unaware of the 30-day time limit, circumstances prevented him from timely submitting the matter, or for other sufficient reasons. 29 C.F.R. § 1613.214(a)(4). Plaintiff did not contact the EEOC within 30 days of her failure to be promoted in 1980 or in 1982. She does not contend that she was unaware of the 30-day time limit or that circumstances prevented her from timely presenting her claims. She did not contact an EEO counselor until January 1985 after defendant had again refused to promote her in December 1984. Although the charge concerning the agency's refusal to promote in 1984 was timely filed, the claims with respect to the 1980 and 1982 promotion reviews were not filed within the requisite 30 days. *fn3" Defendant concludes, therefore, that these allegations are time-barred under Title VII.

 Plaintiff asserts, however, that her claims with respect to the 1980 and 1982 denied promotions should not be dismissed because they are part of a pattern of continuing discrimination and, therefore, are properly before this Court. If an aggrieved employee alleges a pattern of continuing discrimination in violation of Title VII, claims which arose more than 30 days before a charge was first filed with the defendant agency are not time-barred under Title VII. E.g., Valentino v. U.S. Postal Service, 218 U.S. App. D.C. 213, 674 F.2d 56, 65 (D.C. Cir. 1982); Scott v. Claytor, 469 F. Supp. 22 (D.D.C. 1978). "The rationale underlying this approach is that a remedy should be provided 'for past actions which operate to discriminate against the complainant at the present time' . . . . The essential ingredient is the interrelatedness of the past and present acts and not simply any similarity between them." Scott v. Claytor, supra, 469 F. Supp. at 25.

 The Fifth Circuit has delineated the following factors for a court to consider in determining whether the employee has established a continuing violation:

 
(1) Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation?
 
(2) Are the alleged acts recurring or more in the nature of an isolated work assignment or employment decision?
 
(3) Does the act have the degree of permanence which would trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?

 Berry v. Board of Supervisors of LSU, 715 F.2d 971, 981 (5th Cir. 1983). The continuing violation theory requires the Court to engage in a case-by-case analysis.

 Defendant contends that the agency's refusal to promote plaintiff in 1984 was an isolated employment decision, unrelated to the failure to promote plaintiff in 1980 or 1982. The three incidents were separated by a considerable time span and involved two different supervisors, lending credence to defendant's proposition that the incidents were isolated and unrelated. As the Supreme Court observed, "mere continuity of employment without more is insufficient to prolong the life of a cause of action ...


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