employed by the D.C. Office of Youth Advocacy. Perkins held a position as a Special Assistant, DS-9, while Smith served as a Program Assistant, GS-7. At that time, the Office of Youth Advocacy experienced a reduction in force ("RIF") and both Perkins and Smith were reassigned to the Department of Transportation ("DOT"), which in 1983 became the Department of Public Works ("DPW"). Perkins was placed in a Secretary (typing), GS-5, position. Although she was placed in a lower grade, she retained her prior salary. Smith was placed in the position of Booter Foreman, WS-05, and received a salary increase.
On July 26, 1981, Perkins was reassigned to an Administrative Aide (typist), DS-6, position, which she currently holds. From February 25, 1985 to July 14, 1986, Perkins was detailed to perform an "Unclassified Set of Duties." During this detail, Perkins served as a parking operations specialist trainee.
In 1978, Katherine Kuzemka, a white female, commenced employment with the D.C. Department of Transportation as a Supervisory Parking Control Aide, GS-6. Kuzemka was promoted to Parking Security Specialist, DS-9, effective June 3, 1981, and to Parking Security Specialist, DS-11, effective January 6, 1985. During 1984, Kuzemka was detailed to perform an "Unclassified Set of Duties" which comprised those duties which would be performed by a trainee for Parking Operations Specialist position. On February 15, 1987, Kuzemka was reassigned to a position as a Parking Operations Specialist, DS-11.
In May 1986, the position of Parking Operations Specialist, DS-7/9/11, was posted for competition. Both Perkins and Smith applied for the vacancy. The Office of Personnel notified Perkins that she was among those qualified to apply for the position, and her name was submitted along with four other eligibles on the Selection Certificate. Smith was selected for the position.
Perkins filed a charge of discrimination with the D.C. Office of Human Rights on December 3, 1986. The Office of Human Rights issued an initial decision finding no probable cause on February 4, 1987; Perkins' appeal of this decision was denied on March 24, 1989. On April 13, 1989, Perkins filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued its final determination and a right to sue notice on May 31, 1990. On August 27, 1990, plaintiff filed the instant action.
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Since defendant, the party moving for summary judgment, has the burden of proving the lack of any genuine issue of fact, the Court must view the available facts in the light most favorable to plaintiff. Minihan v. American Pharmaceutical Ass'n, 259 U.S. App. D.C. 10, 812 F.2d 726, 727 (D.C. Cir. 1987). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
To withstand a motion for summary judgment, the non-moving party must demonstrate that there exists a genuine dispute as to one or more facts material to the outcome of the litigation. The facts which are material to the outcome of a case are those that the governing substantive law recognize as relevant. Liberty Lobby, 477 U.S. at 248. Since this case involves claims of disparate treatment on the bases of race and sex, the material facts are those which speak to the elements of the analytical framework laid down in Title VII by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S. Ct. 1817, 1824-1825, 36 L. Ed. 2d 668 (1973), and its progeny.
It is necessary for plaintiff to indicate that there is some evidence to demonstrate that her race and gender played a role in the challenged agency actions.
First, plaintiff must prove a prima facie case of discrimination by a preponderance of the evidence. Proof of a prima facie case gives rise to a rebuttable presumption or inference of discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714, 103 S. Ct. 1478, 1481, 75 L. Ed. 2d 403 (1983). In order to establish a prima facie case, Perkins must show (1) that she belongs to a class of persons protected by Title VII (2) that she applied for and was qualified for the promotion for which she was not selected; (3) that despite her qualifications, she was rejected; and (4) that the plaintiff was rejected at the same time that another employee of similar qualifications who was not a member of plaintiff's group was selected. McDonnell Douglas v. Green, 411 U.S. at 802, 93 S. Ct. at 1824; Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934, 951 (D.C. Cir. 1981).
Second, if plaintiff succeeds in proving this prima facie case, the burden then shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. The employer's burden is not one of persuasion, but one of production. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981).
Third, if defendant meets this burden, plaintiff is then granted an opportunity to prove by a preponderance of the evidence that the facially legitimate reason offered by the defendant was not its true reason, but rather a pretext for discrimination. Id. at 252-253, 101 S. Ct. at 1093-94. "Within this framework, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Martin Trigona v. Univ. of District of Columbia, 668 F. Supp. 682, 692 (D.D.C. 1987).
Perkins alleges that she is a victim of discrimination on the basis of her race because in 1981 she was not selected to fill the position of Parking Security Specialist, DS-7/9. The selectee in 1981 was Kuzemka, a white female. Perkins also alleges that in May 1986 she was a victim of sex discrimination because she was not selected to fill the position of Parking Operations Specialist, DS-7/9/11. The selectee in 1986 was Smith, a black male. In addition, Perkins alleges that Smith received favored treatment on the basis of his sex at the time they were members of a RIF within the Office of Youth Advocacy and accepted jobs with the Department of Transportation in 1978.
In the motion for summary judgment, defendant presents two arguments. First, defendant contends that Perkins did not file a timely charge of discrimination with respect to alleged unlawful employment practices which occurred prior to 1986. The Court agrees.
As a prerequisite to filing an employment discrimination action under Title VII, an aggrieved employee must timely file a charge with the EEOC. Love v. Pullman Co., 404 U.S. 522, 92 S. Ct. 616, 30 L. Ed. 2d 679 (1972). The statute of limitations for filing a charge with the EEOC provides in part:
A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge . . . shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice . . . such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier. . . .