The opinion of the court was delivered by: OBERDORFER
LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE
An Order filed on May 13, 1988 granted defendant's motion for partial summary judgment in part and denied it in part for reasons to be stated in a Memorandum to be filed. Filing of that Memorandum has been postponed until decision could be reached on all the issues in the case. This Memorandum does that.
This is a Title VII race discrimination case against the Department of Agriculture. Plaintiff is employed by the Foreign Agricultural Service ("FAS") as Coordinator of the Small and Minority Business Export Program, classified under Civil Service as a GM-14 Agricultural Marketing Specialist. His principal job function is recruitment of small and minority firms for participation in FAS programs. Plaintiff is the highest ranking black employee in FAS, and the only black holding the grade of GM-14. "His job is to promote and facilitate the export of agricultural commodities produced by our country's minority and small business enterprises." Plaintiff's Proposed Findings of Fact at 1; see also Parties' Trial Stipulations at 8. He has never formally applied for any higher position.
Plaintiff began his career at the Department of Agriculture in 1967 as a GM-11 in the FAS as a Marketing Specialist in the Livestock and Meat Products Division. He was promoted to GM-12 several years later and served as an Assistant Agricultural Attache in Liberia from 1971-73. He was promoted to GM-13 in 1975, and was selected for his current position in 1980.
Prior to trial, which began on May 16, 1988, defendant filed a motion for partial summary judgment on three issues: (1) plaintiff's claim of discrimination for non-conversion to the Foreign Service; (2) plaintiff's claim of discrimination for non-promotion to GM-15; and (3) defendant's rejection of plaintiff's February 7, 1987 EEO complaint. For reasons stated below, defendant's motion for partial summary judgment was granted with respect to plaintiff's claims based on non-conversion to the Foreign Service and with respect to the defendant's rejection of plaintiff's February 1987 EEO complaint. Defendant's motion for partial summary judgment was denied with respect to plaintiff's non-promotion to GM-15.
Regarding plaintiff's non-conversion to the Foreign Service, defendant contended that plaintiff was not eligible to be "grandfathered" into the Foreign Service in 1981 because he did not meet the established criteria. See Defendant's Memorandum of Points and Authorities in Support of Motion to Dismiss, or in the Alternative for Summary Judgment ("Defendant's Mem.") at 2-5. In 1984, plaintiff did apply for lateral entry into the Foreign Service along with 13 other GM-14s and 8 GM-13s. Plaintiff was not among the 3 GM-14s and 2 GM-13s referred for examination for the Foreign Service, and he was so notified on March 13, 1984. Although he claimed that this denial was based on race discrimination, he did not contact an EEO counselor within 30 days of this rejection as required by 29 C.F.R. § 1613.214. According to defendant, plaintiff's first contact with an EEO counselor was on November 18, 1985 and his first EEO complaint was filed February 7, 1986. Hence, defendant contended that it was entitled to partial summary judgment on this issue because plaintiff failed to file his EEO complaint within 30 days as required by 29 C.F.R. § 1613.214, and plaintiff has not presented any equitable reasons for his failure to contact an EEO counselor on a timely basis. Defendant's Mem. at 5, 10-12.
Plaintiff argued that his non-conversion claim should not be dismissed because the discrimination he experienced on this issue can be regarded as a "continuing violation" dating back to 1984. Plaintiff's Opposition to Defendant's Motion for Partial Summary Judgment ("Plaintiff's Opp.") at 19. However, defendant has proffered evidence, which plaintiff does not traverse, that there were no vacancies available for lateral entry into the Foreign Service by senior employees in 1985, 1986, or 1987, and that plaintiff hence has not established a prima facie case of discrimination with respect to the period from November 1985 to the present. Defendant's Mem. at 6, 12. Moreover, plaintiff did not meet the criteria to be "grandfathered" into the Foreign Service. See Defendant's Notice of Filing, dated May 12, 1988, including Secretary's Memorandum No. 2028, United States Department of Agriculture, dated November 18, 1980. For these reasons, defendant's motion for partial summary judgment with respect to plaintiff's non-conversion to the foreign service must be granted.
With respect to the second issue on which defendant sought partial summary judgment, namely, plaintiff's non-promotion to GM-15, defendant contended that it was entitled to partial summary judgment because plaintiff did not apply for any GM-15 vacancies during 1983, 1984, or 1985. Defendant's Mem. at 6-7, 12-13. Plaintiff is not in a position with career ladder potential beyond the GM-14 level. Id.
In opposition, plaintiff contended that he was not able to apply formally for a promotion because defendant has a practice of filling GM-15 positions without using competitive merit system procedures. Plaintiff's Opp. at 2. Moreover, plaintiff contended that he would prove at trial that defendant has a consistent discriminatory policy of not promoting its black employees to GM-15. Id. at 3-4. Plaintiff also contended that a member of the defendant's all-white Personnel Assignments Committee ("PAC") made a racially derogatory comment to plaintiff, calling him a "black dog." Id. at 3-5. Plaintiff has raised sufficient disputed issues of material fact on the issue of his non-promotion to GM-15 as to preclude summary judgment for defendant on this issue.
The third issue on which defendant sought summary judgment concerned plaintiff's EEO complaint of February 4, 1987. In that complaint, plaintiff alleged that the promotion of Mr. Robert Svec to the Senior Foreign Service, the merit pay increase given to Lynn Abbott (plaintiff's supervisor), and plaintiff's failure to be promoted to GM-15 or converted to the Foreign Service constituted race discrimination and retaliation for his prior EEO activity. Id. at 7, 14. The agency declined to accept this complaint on the basis of plaintiff's failure to state a claim. 29 C.F.R. §§ 1613.212, 1613.215. Defendant moved for summary judgment on the same grounds.
In opposition, plaintiff argued that his claim based on defendant's rejection of his administrative complaint of February 1987 should not be dismissed. Plaintiff contended that his administrative complaint was timely, and properly raised his race discrimination claims ...