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HATCHER-CAPERS v. HALEY

September 30, 1991

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



The opinion of the court was delivered by: RICHEY

 CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE

 Before the Court is the defendant's Second Motion for Summary Judgment, plaintiff's opposition thereto, and the defendant's reply. The plaintiff, a federal employee, complains that the Postal Rate Commission has failed to promote her because of race and gender discrimination. She initially 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. In an Opinion filed on May 1, 1991, this Court dismissed the plaintiff's claim of intentional infliction of emotional distress, and granted the defendant's Motion for Summary Judgment on the Equal Pay Act claim. The Court denied the defendant's first Motion for Summary Judgment on the Title VII claim, because it concluded that there remained a genuine issue of material fact regarding whether the plaintiff's complaint was timely. In its present motion, the defendant claims that summary judgment must now be granted on the Title VII claim because of further evidence of untimeliness in the plaintiff's deposition testimony.

 Because, after careful consideration of the matter, the Court finds that the evidence in the deposition testimony does not resolve the dispute regarding timeliness, the defendant's Second Motion for Summary Judgment shall be denied.

 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.

 In 1982, the Postal Rate Commission apparently adopted a policy governing the grade structure of its staff offices, in which it was determined that the number of promotions to the next grade pay grade level, EAS-28, would be limited to vacancies occurring. *fn1"

 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.

 On July 15, 1989, the plaintiff filed her agency complaint based on Title VII and the Equal Pay Act. On August 18, 1989, the Commission dismissed the Equal Pay Act claims for failure to state a claim and as untimely, and dismissed the Title VII claim as untimely. The plaintiff timely appealed the Commission's decision to the Equal Employment Opportunity Commission ("EEOC"), which affirmed the Commission. By Decision dated November 27, 1989, the EEOC held that the plaintiff failed to state a claim under the Equal Pay Act and that the Title VII claim was untimely. The plaintiff filed a petition for the EEOC to reopen its decision, which it refused. The plaintiff then filed suit in this Court.

 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 [non-movant'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.

 The defendant seeks dismissal of the plaintiff's one remaining claim as untimely under Title VII. The defendant argues that Title VII requires claimants to act within thirty days of the alleged discriminatory conduct, and that the plaintiff did not initiate her Title VII proceedings until several years after the Commission's adoption of the disputed promotion policy. The defendant further argues that the plaintiff has shown no grounds for equitable tolling of the statute of limitations, and has not alleged facts showing a continuing violation of Title VII. Although both the Commission and the EEOC concluded that the plaintiff's Title VII claim was untimely, the Court cannot conclude at this stage, any more than it could when reviewing the previous motion, that there is no genuine issue of material fact and that the defendant is entitled to judgment as a matter of law.

 Under EEOC regulations, a federal employee must submit a discrimination complaint to the agency counselor within thirty days of the alleged discriminatory event or action, or within thirty days of the date that she knew or reasonably ...


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