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CALIENDO v. BENTSEN

March 31, 1995

FRANCIS A. CALIENDO, Plaintiff,
v.
LLOYD BENTSEN, SECRETARY OF THE TREASURY, Defendant.



The opinion of the court was delivered by: STANLEY SPORKIN

 This matter comes before the Court on Defendant's partial motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff, a Special Agent for the Department of the Treasury's U.S. Customs' Service, brings this action against his employer for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and for violations of the Age Discrimination Employment Act, 29 U.S.C. § 621 et seq. ("ADEA").

 Plaintiff's complaint alleges a host of retaliatory actions in violation of Title VII by Plaintiff's employer over a span of four years, including denials of performance awards, issuance of a letter of reprimand, removal from assignments and refusals to promote. The last action of which Plaintiff complains is his reassignment from Cleveland to Los Angeles which became effective on February 6, 1994. *fn1"

 Defendant contends that Plaintiff has failed to exhaust his administrative remedies with respect to all of his claims, except his claims of retaliation in violation of Title VII and age discrimination in violation of the ADEA relating to his transfer from Cleveland to Los Angeles. All parties concede that Plaintiff timely filed an administrative EEOC charge with respect to his transfer claims. In opposition to Defendant's motion, Plaintiff argues that he has properly alleged a "continuing violation" theory, which allows a plaintiff to litigate claims which fall outside of EEOC charge-filing time requirements, as long as one claim falls within the charge-filing period.

 Prior to filing a Title VII suit, an individual must first file an administrative complaint with the Equal Employment Opportunity Commission ("EEOC"). Shehadeh v. Chesapeake & Potomac Tel. Co., 193 U.S. App. D.C. 326, 595 F.2d 711, 717 (D.C. Cir. 1978). Exhaustion of this administrative remedy is a prerequisite to judicial relief. Siegel v. Kreps, 210 U.S. App. D.C. 58, 654 F.2d 773, 776-77 (D.C. Cir. 1981). Pursuant to 29 C.F.R. § 1613.214(a)(1)(i), an individual must contact an EEOC counselor within 30 days of the alleged acts of retaliation. This time limit is treated as a statute of limitations, subject to waiver, estoppel and tolling. Kizas v. Webster, 227 U.S. App. D.C. 327, 707 F.2d 524, 543 (D.C. Cir. 1983), cert. denied, 464 U.S. 1042, 79 L. Ed. 2d 173, 104 S. Ct. 709. Thus, as a general rule, a Title VII claim can only be comprised of misconduct that the Plaintiff complained of in a timely-filed administrative complaint before the EEOC. Shehadeh at 724. The purpose behind this rule is to protect defendants against having to defend against stale claims. Delaware State College v. Ricks, 449 U.S. 250, 256-57, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980).

 An exception exists, however, when a "continuing discriminatory employment practice is alleged." Shehadeh at 724. Where the discriminatory practice is continuing in nature, "the administrative complaint may be timely filed notwithstanding that the conduct impugned is comprised in part of acts lying outside the charge-filing period." Id. The legislative history of Title VII supports the "continuing violation" exception to the 30 day time limit. Congress indicated that where continuing violations exist, the required time periods for filing administrative complaints should run "from the last occurrence of the discrimination and not from the first occurrence." *fn2" Under the continuing violation theory, "it is the ongoing program of discrimination, rather than any of its particular manifestations, that is the subject of attack." Shehadeh at 724-25. Such an ongoing program of discrimination can be directed against one employee "as readily as against a sizeable class of employees." Id. at 725, n. 73.

 In order to save the claims for which an administrative claim was not filed within the prescribed time limits, the Plaintiff must have properly alleged the continuing violation theory in both the administrative complaint *fn3" as well as the formal complaint before this Court. Only those claims properly raised at the administrative level may be set forth in the district court complaint. *fn4" In this case, Defendant does not challenge the sufficiency of the administrative complaint to support federal court review of the claims that fall outside of the EEOC charge filing time requirements. The Defendant's motion to dismiss is only directed at the Plaintiff's district court complaint.

 MOTION TO DISMISS STANDARDS

 In ruling on a motion to dismiss for failure to state a claim upon which relief may be granted, the Court must accept as true each of the allegations in the complaint. The motion should not be granted unless it appears that the plaintiff can prove no set of facts entitling him to the relief sought in the complaint. See, e.g., Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1977).

 ANALYSIS AND DECISION

 The issue before the Court is whether Plaintiff's complaint adequately alleges facts which would support a continuing violations theory. The D.C. Circuit has held:

 
To be considered continuing in nature . . . the discrimination may not be 'limited to isolated incidents but [must] pervade[] a series or pattern of events which continue to within' the filing period.

 Milton v. Weinberger, 207 U.S. App. D.C. 145, 645 F.2d 1070, 1076 (D.C. Cir. 1981) (citation omitted). Specific, unrelated incidents of discrimination do not constitute a continuing violation. Id. The remote claims must be connected to the claims for ...


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