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COLANTUONI v. MACOMBER

December 4, 1992

IDO E. COLANTUONI, Plaintiff,
v.
JOHN D. MACOMBER, Defendant.



The opinion of the court was delivered by: JOHN H. PRATT

 The two above cases, which have been consolidated, together with a third action filed April 3, 1992 (Civil Action No. 92-0815) involve claims of employment discrimination based on age, sex and retaliation. These cases represent only a small part of the volume of administrative complaints made by plaintiff against defendant over the past ten (10) years. The two above consolidated cases are now before the Court on defendant's motion for partial summary judgment, plaintiff's opposition, and defendant's reply. Under Fed. R. Civ. P. 56(c), summary judgment will be granted if the moving party can demonstrate "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." The Court grants defendant's motion. Specifically, the Court grants defendant's motion in regard to the relief requests in plaintiff's administrative complaint in Administrative Case No. EIB 23 ("EIB 23), *fn1" and in regard to plaintiff's claims numbers one and two as set forth in EIB 23. *fn2"

 The Court notes that defendant did not move for summary judgment on plaintiff's claim number three in EIB 23, specifically, "current performance appraisal for year ending 3/31/88 is not [a] fair and objective evaluation of [plaintiff's] true performance for the period." *fn3" Accordingly, that claim survives this order.

 Background

 Plaintiff has brought suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621. He alleges discrimination on the basis of age, sex and retaliation. Plaintiff brought suit in this Court after properly exhausting his administrative remedies. The case comes before us de novo.4

 Plaintiff has worked at the Export-Import Bank of the United States ("EIB") in various capacities for more than twenty-five years. From January 1985 to August 1988, plaintiff worked as an International Economist in the Policy and Planning Division of the EIB under the supervision of the Vice President for that division, Mr. James C. Cruse. On June 17, 1988, Plaintiff filed an administrative complaint with the Equal Employment Opportunity Director at the EIB alleging discrimination. *fn5" The administrative complaint alleged discrimination on the basis of age, sex and retaliation and named James Cruse as the discriminating official. Three instances of discrimination were alleged: (1) Cruse showed plaintiff documents indicating a proposed lowering of plaintiff's job grade from GS-15 to GS-11; (2) Cruse's unwillingness to discuss job opportunities to maintain plaintiff's GS-15 level; and (3) Plaintiff's current job appraisal for the year ending 3/31/88 was not a fair and objective evaluation. *fn6" The complaint was initially accepted in part and rejected in part, based on 29 C.F.R. § 1613.215(a). *fn7"

 After partially failing in his appeal at the administrative level, *fn8" plaintiff appealed the partial rejection of his complaint to the Equal Employment Opportunity Commission ("EEOC"). *fn9" On October 19, 1988, the EEOC rejected in part and granted in part plaintiff's motion, *fn10" resulting in a remand to the agency (the EIB) for further processing. Both plaintiff and the EIB requested the EEOC to reconsider it's opinion of October 19, 1988. The EEOC issued a "reconsideration" of that decision on July 10, 1989. *fn11" On August 9, 1989, the thirtieth day after the final EEOC decision adverse to plaintiff, plaintiff filed this claim, which was docketed as Civil Action No. 89-2244. *fn12"

 Discussion

 I. Summary Judgment is Granted for Defendant on Plaintiff's Relief Requests in Administrative Complaint EIB 23.

 The Court grants defendant's motion for summary judgment regarding corrective action number three requested in plaintiff's administrative complaint ("giving preferential treatment to young white women with less education & experience than the [plaintiff]"). *fn13" Even if we give the plaintiff the benefit of the doubt regarding whether this should properly be considered as a claim, the EIB correctly dismissed this part of plaintiff's administrative complaint for failure to prosecute under 29 C.F.R. § 1613.215(a)(6).

 First, it is unclear that plaintiff's relief request number three should ever have been considered as a claim. A close examination of plaintiff's administrative complaint shows the following. Box seven of the complaint form asks the complainant to "explain how you believe you were discriminated against (treated differently from other employees or applicants) because of your race, color, religion, sex, or national origin . . ." Plaintiff listed three instances of alleged discrimination in box seven. Box nine of the same form asks complainant, "What corrective action are you seeking?" Plaintiff listed four requested corrective actions, including the request at issue, in box nine.

 Although the EIB and the EEOC initially treated plaintiff's third request for corrective action as if it were a properly alleged instance of discrimination, *fn14" the EEOC's subsequent review of this action held that treatment to have been an error. The EEOC concluded, "while the relief requested by a complainant may shed some light on the issues raised by a complaint, the relief requests themselves are not subject to an acceptability determination." *fn15" We agree with the Commission's determination.

 This Circuit, however, has taken the position that "EEO complaints are to be liberally construed 'since very commonly they are framed by persons unschooled in technical pleading.'" Brown v. Marsh, 250 U.S. App. D.C. 8, 777 F.2d 8, 13 (D.C. Cir. 1985) (citing Shehadeh v. Chesapeake & Potomac Telephone Co., 193 U.S. App. D.C. 326, 595 F.2d 711, 727 (D.C. Cir. 1978)). Accordingly, the relevant inquiry is not into the technical sufficiency of the complaint, but whether plaintiff's actions were "adequate to put the [agency] on notice." President v. Vance, 200 U.S. App. D.C. 300, 627 F.2d 353, 361 (D.C. Cir. 1980). Since plaintiff did discuss this claim with the EIB EEO counselor, *fn16" and since plaintiff did describe this claim in his administrative complaint filed with the EIB, the agency here had notice of plaintiff's claim. With some reluctance, we are constrained to hold that his relief request number three was properly considered as a claim raising the issue of discrimination.

 Granting that the claim was properly considered as a claim of discrimination, however, does not mean that it is still viable. The EIB acted properly when it dismissed plaintiff's claim for failure to prosecute, after plaintiff failed to submit requested information within a fifteen day time period, pursuant to 29 C.F.R. 1613.215(a)(6). *fn17" Plaintiff did not provide more specific information as needed to fully make out a ...


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