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LOCKLEY v. CHAO

February 4, 1993

LULA M. LOCKLEY, Plaintiff,
v.
ELAINE L. CHAO, Director, Peace Corps of the United States, Defendant.



The opinion of the court was delivered by: GEORGE H. REVERCOMB

 This employment discrimination case is before the Court on two motions by the defendant: (1) Defendant's Motion to Dismiss and for Summary Judgment; and (2) Defendant's Motion to Strike Plaintiff's Demand for Compensatory Damages and a Trial by Jury. Both motions have been fully briefed, and oral argument was heard on September 10, 1992.

 Background1

 The complaint states a cause of action for racial discrimination arising out of a series of events that took place between November 1987 and May 1990. Plaintiff makes claims upon numerous alleged acts of discrimination as well as a claim of retaliation for complaining about discriminatory acts. The facts are set forth very briefly.

 Plaintiff is a registered nurse who is black. On November 22, 1987, plaintiff was hired by the Peace Corps as an Occupational Health Nurse in the Office of Medical Services ("OMS") for a thirty-month tour of duty to end May 21, 1990. Plaintiff alleges that subsequent to her hiring, she was not trained as extensively, or by supervisory personnel, as contemporaneously hired white nurses were. Instead, for the first four months of her tour, she was assigned relatively simple tasks usually performed by a part-time employee. Even after assuming the responsibilities normally accompanying the position she held, plaintiff never received adequate training.

 Nonetheless, plaintiff performed well in her job, and in April 1989 she received her first evaluation (the "1989 Evaluation"), for the period March 1980 through February 1989, which rated her job performance as "excellent." Despite that high rating, plaintiff alleges that her supervisor, motivated by racial animus, included critical narrative descriptions in the evaluation regarding events that occurred either before the evaluation period had begun or after it had ended. Numerous times during the spring and summer of 1989, plaintiff attempted to discuss the evaluation with her supervisor in order to have the evaluation amended, but she was unsuccessful.

 Separately, during this time period, plaintiff was diagnosed with a medical condition that required her to cease travelling--up to then an important aspect of her job--and to limit herself to no more than a forty-hour work week. Plaintiff sought assistance from an Equal Employment Opportunity Commission ("EEOC") counselor to help her negotiate an accommodation in her work schedule necessitated by her condition. This counselling took place during the summer of 1989. No formal complaint was made by plaintiff at that time, although plaintiff alleges that she was told by her EEO counselor that she would likely be retaliated against should she file a complaint of racial discrimination. The EEO counselor denies making any such statement.

 Finally, in October 1989, plaintiff complained about the 1989 Evaluation and other acts of racial discrimination to Barbara Zartman, at that time the Peace Corps' Associate Director for Management. At Ms. Zartman's instance, plaintiff's complaint regarding the 1989 Evaluation was investigated, and the evaluation was altered to exclude comments regarding activity not within the review period. Ms. Zartman also referred plaintiff to the EEOC, and plaintiff sought counselling for a second time. Again, however, no formal complaint was brought.

 Three months after transferring to OWCP, plaintiff asked her new supervisor to prepare an evaluation based on plaintiff's three months of work in that office so that plaintiff could include the evaluation in her application for the occupational health nurse position. Plaintiff received her evaluation (the "Interim Evaluation") in April 1990, and as before her work was rated "excellent." Also as before, plaintiff found the narrative portions of her evaluation to be unduly critical and lacking an accurate and complete description of her accomplishments.

 Later in April, plaintiff received an evaluation from the OMS (the "1990 Evaluation"), which reviewed her work for the year prior to her transfer. Once again, her work was rated "excellent," but plaintiff alleges that certain critical narrative comments were included in order to discriminate against plaintiff on the basis of her race. When plaintiff complained to Laverne Pierce Webb, the Director of the Office of Volunteer Services, Ms. Webb had the Interim Evaluation stricken because, as an evaluation covering less than 120 days, it did not conform to personnel standards. Ms. Webb approved the 1990 Evaluation, however, finding that it was a fair and accurate description of plaintiff's work.

 When the OWCP occupational health nurse position was advertised in late March 1990, applications were restricted to current employees of the Peace Corps. Plaintiff applied for the position, and her application was the only one received. In late April, the position was readvertised for the stated reason that the position had been mistakenly limited to Peace Corps employees only. Following readvertisement, additional applications were received, and the position was awarded to Tommalee Owens, a registered nurse who is black.

 In May 1990, plaintiff sought EEO counselling for a third time. This time she followed up her counselling by filing a formal complaint with the EEOC. The EEOC investigated plaintiff's allegations and ultimately concluded against her. She received a "right to sue" letter on May 1, 1991 and filed this action on May 31, 1991. An amended complaint was filed on December 5, 1991.

 Plaintiff alleges disparate treatment due to racial discrimination based upon (1) her inadequate training, (2) the 1989 Evaluation, (3) the Interim Evaluation, (4) the 1990 Evaluation, (5) the failure to offer her a second thirty-month tour, and (6) the failure to hire her for the OWCP position. Additionally, plaintiff alleges retaliation in the form of day-to-day harassment as well as adverse employment actions as a result of her complaints to supervisors about racially discriminatory behavior.

 Discussion

 A. Motion to Dismiss and for Summary Judgment

 The standard to be applied in evaluating a motion for summary judgment in a Title VII case was recently restated by the Court of Appeals:

 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is to be granted only "if 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." The district judge, in ruling on a summary judgment motion, must assume the truth of the nonmovant's evidence, and draw all justifiable inferences in that party's favor.

 Bayer v. United States Dep't of the Treasury, 294 U.S. App. D.C. 44, 956 F.2d 330, 333 (D.C. Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). Under this standard, the Court must defer to plaintiff's evidence if to do otherwise involves a determination of credibility.

 1. Timeliness

 On a procedural level, defendant challenges all of plaintiff's claims except the failure to hire for the OWCP position on the grounds that plaintiff did not seek EEO counselling within the required thirty-day limit following the alleged discriminatory acts. See 29 C.F.R. ยง 1613.214(a)(1)(i). It is undisputed that plaintiff did not seek EEO counselling within thirty days of any of the alleged discriminatory acts except the final failure to hire her for the OWCP position.

 Considering the number of times plaintiff sought EEO counselling in this case alone, and plaintiff's prior experience with the EEOC, *fn2" it seems unlikely that she was unaware of the thirty-day limit. Nonetheless, that is precisely what she alleges in her affidavit. With this in mind, the Court notes that the "thirty-day regulation is not jurisdictional; rather, it is at least as yielding as a statute of limitations that can be tolled for equitable reasons." Bayer, 956 F.2d at 332. Where, as here, a plaintiff denies knowledge of the time limit, or alleges that she was warned not to file a formal complaint to avoid retaliation, and construing the facts in the light most favorable for the ...


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