also asserts that the white employees who were promoted did not have qualifications similar to those of plaintiff, thereby precluding her from meeting the fourth prong of the prima facie test. For these same reasons, defendant argues that, even assuming plaintiff satisfies the prima facie test, she cannot establish that defendant's reasons for refusing to promote her were pretextual.
Defendant further directs the Court's attention to Day v. Mathews, 174 U.S. App. D.C. 231, 530 F.2d 1083 (D.C. Cir. 1976), where this Circuit held that "back pay and retroactive promotion should be awarded unless the Secretary, by clear and convincing evidence, carries his burden of proving that, even absent the admitted discrimination, . . . [plaintiff] still would not have been selected." Id. at 1086. Defendant concludes, therefore, that even if the Court were to find that the agency had discriminated against plaintiff, she would not have been promoted regardless of the discrimination because OPM in a binding decision classified plaintiff's position as a GS-6. Plaintiff, however, is seeking more than back pay and retroactive promotion. She also requests the Court to enter a declaratory judgment that defendant has engaged in discriminatory acts and to order defendant to cease such practices. Dismissal of the 1984 promotion claim on the Day rationale, therefore, would be inappropriate at this time.
Plaintiff also has raised a genuine issue of fact with respect to whether defendant discriminated against her by not assigning her additional duties to allow her to qualify for a GS-7 grade as the agency allegedly had done for white employees seeking promotions. Defendant claims, though, that plaintiff has raised a new theory to her case which was not before the agency on her administrative complaint and, therefore, is untimely. Plaintiff initially had alleged that because she had assumed additional duties she was entitled to a GS-7 promotion. The assertion now put forth by plaintiff is consistent with her claim of discrimination in that both theories contend that she was given disparate treatment with respect to promotions because she is black. In a Title VII action, "a plaintiff may not raise in court a basis of discrimination which was not included in her administrative complaint." Miller v. Smith, 584 F. Supp. 149 (D.D.C. 1984) (emphasis in original). Here plaintiff alleged discrimination on the basis of race and color both in her administrative complaint and in the action presently before the Court and, therefore, her claim is not time-barred.
Plaintiff, moreover, has raised material issues of fact with respect to the trial period the agency sought to impose before it would consider promoting her to the next grade, a procedure to which she claims the white employees were not subjected. Defendant contends that plaintiff refused to accept any additional responsibilities. Although she bears the ultimate burden of proof, plaintiff has sufficiently alleged racial discrimination and raised issues of material fact to withstand defendant's motion to dismiss or, in the alternative, for summary judgment with respect to the 1984 failure to promote claim.
April 1985 Letter of Reprimand
In April 1985, plaintiff received a letter of reprimand from Ms. Aceto, her supervisor, regarding a mistake in the log sheets. After plaintiff explained what had occurred, the letter of reprimand was rescinded and removed from plaintiff's personnel file within nine days of being issued. Defendant argues, accordingly, that plaintiff's claim is moot. This Circuit has held that "the request for injunctive relief will be moot only where there is no reasonable expectation that the conduct will recur, or where interim events 'have completely and irrevocably eradicated the effects of the alleged violation.'" Bundy v. Jackson, supra, 641 F.2d at 946 n.13 (D.C. Cir. 1981). Defendant contends that there is no reasonable expectation that the alleged violation will recur. The agency further asserts that any effects from the letter of reprimand have been eradicated by its removal from plaintiff's personnel file.
Plaintiff counters by noting that prior to this suit only blacks were subjected to disciplinary actions. Plaintiff claims, for example, that Ms. Aceto never issued a letter of reprimand to a white employee who failed to complete tasks as requested. While these allegations may be relevant to her overall case, plaintiff does not seek specific relief with respect to the letter of reprimand. Since the letter was rescinded, plaintiff's claim shall be dismissed as moot.
Failure to Give Plaintiff a Cash Award
In October 1984 plaintiff assumed the duties of Ms. Whistler, a Funds Control Officer, who was ill. Ms. Whistler had been rated at a GS-7 grade. Plaintiff seeks a cash award of $ 500 for her assumption of Ms. Whistler's duties. Defendant on March 30, 1987 gave plaintiff a cash award of $ 1,000 in recognition of the additional duties she assumed from Ms. Whistler. Defendant asserts, therefore, that this claim is moot and should be dismissed.
Plaintiff argues that her claim is not moot because she is seeking general injunctive relief. Although plaintiff may choose to proffer defendant's initial failure to give her a cash award as evidence of discrimination, there does not appear to be any further relief the Court can grant on this claim. The Court, therefore, shall grant defendant's motion to dismiss plaintiff's claim with respect to the cash award.
In accordance with the foregoing conclusions, it is this day of May, 1987,
ORDERED that defendant's motion to dismiss plaintiff's claims with respect to the letter of reprimand and the cash award is granted and these claims are hereby dismissed; and it is
FURTHER ORDERED that defendant's motion with respect to plaintiff's claims regarding defendant's failure to promote her in 1980, 1982 and 1984 is denied without prejudice.