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RICHARDS v. UNITED STATES MSPB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


June 28, 1990

ELGIE B. RICHARDS, Plaintiff,
v.
UNITED STATES MERIT SYSTEMS PROTECTION BOARD, et al., Defendants

George H. Revercomb, United States District Judge.

The opinion of the court was delivered by: REVERCOMB

ORDER

GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 The plaintiff is a civilian employee of the Department of the Army at the United States Military Community Activity in Bremerhaven, West Germany. He is employed as Chief of the Transportation Division of Headquarters 543d Area Support Group, Transportation Division, Logistics Department. The defendants had classified the plaintiff's position as a GS-11 and denied the plaintiff's petition to have his position reclassified as a GS-12 which, according to the plaintiff, was the grade consistent with the position description and responsibilities. The plaintiff contends that the defendants' failure not to reclassify his position is racial discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 (1982), and the fifth and fourteenth amendments to the Constitution.

 This matter is before the Court pursuant to the defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), (b)(3), and (b)(6).

 A. Jurisdictional Basis

 The defendants contend that the plaintiff's amended complaint *fn1" should be dismissed because he erroneously cites 5 U.S.C. § 7702 as the jurisdictional basis rather than the provisions which establish his two causes of action, namely, Title VII and the fifth and fourteenth amendments to the Constitution. This Court will not dismiss the amended complaint on so formal and technical a ground where his amended complaint specifically provides that his first claim for relief is premised upon violations of 42 U.S.C. § 2000e and that his second claim for relief is premised upon violations of the fifth and fourteenth amendments to the Constitution. *fn2"

 B. Title VII Claim

 The defendants contend that the plaintiff's Title VII claim should be dismissed because, inter alia, the plaintiff failed to exhaust his administrative remedies by not contacting an Equal Opportunity Employment Counselor as required by 29 C.F.R. § 1613.214(a)(1) (1989) prior to filing his lawsuit. The plaintiff contends that he was not required to contact an EEO Counselor, however, because the requirement was not in existence at the time he filed the instant complaint. The requirement in fact was in existence at all relevant times pertaining to the instant complaint. The requirement that a Title VII plaintiff contact an EEO counselor within 30 days of the alleged discriminatory event was redesignated from 5 C.F.R. § 713.214 to 19 C.F.R. § 1613.214(a)(1) on January 1, 1979, and has been in effect continuously since that date. See, e.g., Miller v. Smith, 584 F. Supp. 149, 152-53 (D.D.C. 1984).

 C. Constitutional Claims

 The plaintiff concedes that the fourteenth amendment, by its terms, applies only to conduct by states and accordingly provides no basis upon which plaintiff may seek relief against the defendants. See, e.g., Rutherford v. United States, 702 F.2d 580 (5th Cir. 1983). As to the plaintiff's fifth amendment claim, he raises the same discriminatory conduct as the basis for his Title VII claim and it is therefore barred. As the court provided in Bartel v. FAA, 617 F. Supp. 190 (D.D.C. 1985):

 

Both the Supreme Court and the Court of Appeals for this Circuit have held that Title VII provides the exclusive remedy for claims of discrimination in federal employment, and that a plaintiff may not circumvent the carefully crafted Title VII remedial scheme by challenging alleged constitutional violations through conduct which is also proscribed under the statute.

 Id. at 193-94. See also Brown v. General Services Administration, 425 U.S. 820, 835, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976); Kizas v. Webster, 227 U.S. App. D.C. 327, 707 F.2d 524, 542 (D.C. Cir. 1983); Davis v. Califano, 198 U.S. App. D.C. 224, 613 F.2d 957, 958 n. 1 (D.C. Cir. 1979).

 Accordingly, it hereby is

 ORDERED that the plaintiff's amended complaint be, and the same hereby is, DISMISSED.


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