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GARRETT v. HODEL

August 9, 1989

NANCY C. GARRETT, Plaintiff
v.
DONALD P. HODEL, Secretary of the Interior, Defendant


Stanley S. Harris, United States District Judge.


The opinion of the court was delivered by: HARRIS

STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE

 This matter is before the Court on defendant's motion to dismiss for failure to exhaust administrative remedies. For the reasons set forth below, the Court concludes that defendant's motion should be denied.

 Background

 Plaintiff is the only white (non-Indian) female Senior Executive Service employee of the Bureau of Indian Affairs. *fn1" In 1986, she was employed as the Deputy Director/Comptroller, Office of Indian Education Programs, at the SES-4 level. Plaintiff alleges that she was discriminated against on the basis of race, "was prevented from carrying out her assigned duties and [was] methodically removed from all positions of authority within the Office of Indian Education Programs." Complaint at 2.

 Plaintiff specifically alleges that Ross Swimmer, Assistant Secretary for Indian Affairs, and Henrietta Whiteman, Director of the Office of Indian Education Programs, "made and allowed others to make derogatory and discriminatory remarks about plaintiff between January and June 1986." *fn2" Complaint at 3. Plaintiff's 1986 performance appraisal, prepared by Swimmer, rated her as "fully successful." This rating was lower than those on her previous appraisals; plaintiff attributed the drop to discrimination.

 Plaintiff filed a discrimination complaint with the Bureau on August 14, 1986, naming Swimmer and Whiteman as the responsible officials. In her complaint, plaintiff alleged:

 
Since January 1986 I have not been permitted to perform the functions of my position -- my duties have been assigned to several lower-graded staff. My performance appraisal was lower than ever before because management actions prohibited me from performing at an appropriate level to receive a higher rating and award. Both the Asst. Sec. and Director of the office have made discriminatory remarks ("she is non-Indian") about me and permit negative and discriminatory remarks to be made by staff in "public" meetings.

 Plaintiff's Administrative Complaint (Def.'s Exhibit 1) (emphasis in original). In December 1986, plaintiff was named Director of the Office of Administration for the Bureau. Ronald Esquerra, her new supervisor, recommended that plaintiff be rated as "outstanding" on her 1987 performance appraisal. He also recommended raising her to SES-5 and giving her a bonus. Nevertheless, plaintiff's final rating was reduced from "outstanding" to "fully successful" by Swimmer. The rate level increase was approved, but the bonus was denied. *fn3"

 Between August 1986, when plaintiff filed her discrimination complaint, and December 1987, plaintiff had various contacts, some of which are in dispute, with officials of the Department of Interior's Equal Employment Opportunity (EEO) office. In November 1986, the Director of the Office for Equal Opportunity (OEO) sent plaintiff a letter setting forth which of her discrimination claims had been accepted for processing:

 
That you have been discriminated against continuously since January, 1986, because of your race (White) when:
 
1. You have been prevented from carrying out your assigned duties and you have been methodically removed from all positions of authority within the Office of Indian Education Programs.
 
2. The Assistant Secretary - Indian Affairs and the Director, Office of Indian Education Programs, have made and allowed other persons to make ...

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