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HATCHER-CAPERS v. HALEY

May 1, 1991

LOLA HATCHER-CAPERS, Plaintiff,
v.
GEORGE W. HALEY, Chairman, Postal Rate Commission, Defendant



The opinion of the court was delivered by: RICHEY

 Before the Court is the defendant's Motion to Dismiss or for Summary Judgment. The plaintiff, a federal employee, complains that the Postal Rate Commission has failed to promote her because of race and gender discrimination. The plaintiff has alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Equal Pay Act, 29 U.S.C. § 201 et seq., and intentional infliction of emotional distress. After carefully considering the defendant's motion and the supporting and opposing memoranda, the applicable law, and the entire record herein, the Court concludes that the defendant's motion shall be granted in part and denied in part. The Court shall dismiss the plaintiff's Equal Pay Act and tort claims and shall deny defendant's request for summary judgment on the Title VII claim.

 I. Background

 The plaintiff is a black female who works as an attorney-advisor for the Office of General Counsel ("OGC") of the Postal Rate Commission ("Commission"), which is part of the Executive Branch. She began her career with the OGC in June 1980 at the pay level of EAS-19, and was promoted in July 1981. In November 1982, the plaintiff was again promoted to the EAS-25 level. Since then, the plaintiff has remained at the EAS-25 grade pay level.

 The following facts submitted by the defendant were uncontroverted by the plaintiff. *fn1" In 1982, the Postal Rate Commission adopted a policy governing the grade structure of its staff offices. Defendant's Motion to Dismiss, Affidavit of Cyril J. Pittack ("Pittack Aff.") at paras. 4-5. This policy affected promotions in OGC between EAS-25 and the next higher nonsupervisory professional grade, EAS-28. Id. The number of EAS-28 positions was limited to existing levels, and promotion to that grade became dependent upon a vacancy occurring. Id. The adoption of the OGC policy affected the promotion prospects of five attorneys in positions graded below EAS-28. These five individuals included the plaintiff, two white men and two white women. Id. P 4.

 Since 1982, the staffing level of the OGC has declined. As of December 31, 1982, there were three nonsupervisory attorneys graded at or above EAS-28 and five graded below that level. Id. When the plaintiff first contacted the Equal Opportunity Employment counselor in May 1989, there were still three attorneys graded EAS-28 or above, but only two at lower grades. One white man and one white woman, both graded EAS-25, and one white man graded EAS-22, had left the Commission. Id. Since late in 1982, no OGC attorney-advisors, at any grade, have received promotions. No new attorney positions have been filled since 1981. Id.

 The instant dispute began on May 16, 1989 when the plaintiff contacted the Commission's Equal Employment Opportunity counselor. The plaintiff complained that she had not been promoted to the next-higher grade due to a 1982 change in the Commission's staffing policy, which limited the number of positions in the EAS-28 grade. The plaintiff complained that the policy had a disparate effect on black and female employees, and that she had become aware of this policy only within the preceding two weeks. Efforts to resolve the plaintiff's complaint were unsuccessful, and on June 7, 1989, the counselor issued the plaintiff a Notice of Right to File Discrimination Complaint.

 II. Analysis

 A. The Standard for Summary Judgment

 Rule 56(c) of the Federal Rules of Civil Procedure requires that the Court grant a motion for summary judgment if the pleadings and supporting affidavits and other submissions "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." "The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). However, it is well established that the Court must believe the non-movant's evidence and draw all justifiable inferences in her favor. Id. at 255.

 B. Intentional Infliction of Emotional Distress

 The defendant is entitled to dismissal of the plaintiff's claim of intentional infliction of emotional distress. The plaintiff sues the defendant in his official capacity. *fn2" Under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., as amended by the Federal Employees Liability Reform and Compensation Act of 1988, Pub. L. No. 100-694, a certification by the Attorney General or his designee that the defendant acted within the scope of his employment during the events in question will substitute the United States as the exclusive defendant. According to the FTCA:

 
The remedy against the United States provided by sections 1346(b) and 2672 . . . for injury . . . from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same ...

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