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ALBRITTON v. KANTOR

August 15, 1996

Clarence Albritton, Plaintiff,
v.
Michael Kantor, Secretary, Department of Commerce, Defendant.



The opinion of the court was delivered by: URBINA

 Denying Defendant's Motion to Dismiss, or in the alternative, for Summary Judgment

 After consideration of the parties' submissions, the court concludes that the plaintiff has properly alleged a continuing violation so as to vest this court with jurisdiction over his untimely filed claims; that a reasonable juror could conclude that the defendant's proffered reason for not promoting the plaintiff in August 1994 was pretextual; and, lastly, that the plaintiff's suit is not moot because he is entitled to meaningful relief.

 I. Factual Background

 Clarence Albritton (Mr. Albritton) brings this action pursuant to Title VII of the Civil Rights Act of 1964 as amended. He alleges that the Patent Examiner Evaluation Board (PEEB) of the U.S. Patent and Trademark Office (USPTO) discriminated against him by denying him a promotion due to his race.

 Mr. Albritton is an African-American man who was employed with the USPTO for 29 years. He served as a Primacy Patent Examiner, GS-14, prior to his retirement on September 3, 1994. Mr. Albritton alleges that on four separate occasions he submitted an application for promotion to the level of Senior Examiner Status, GS-15 level. He asserts that on each occasion, the PEEB would note additional deficiencies in his application that required actions on his part that had never been required of white applicants who had applied for the same position.

 In October 1991, Mr. Albritton's Group Director, Donald Kelly (Mr. Kelly), submitted Mr. Albritton's application for Senior Examiner to the PEEB. *fn2" On December 6, 1991, the PEEB notified Mr. Kelly that it was deferring its decision on his request to promote Mr. Albritton to Senior Examiner. In deferring its decision, the PEEB discounted Mr. Albritton's Ranking Official Statement submitted by Mr. Stanley Urynowicz, a USPTO official. The PEEB concluded that the Ranking Official Statement was stale because Mr. Urynowicz had not reviewed Mr. Albritton's work since 1985. Consequently, the PEEB requested the submission of a new Ranking Official Statement which reflected familiarity with Mr. Albritton's recent work.

 On January 27 1992, Mr. Albritton submitted a statement from a second Ranking Official, Thomas E. Lynch (Mr. Lynch). On August 6, 1992, the PEEB denied Mr. Albritton's request for a promotion. The PEEB found that the new Ranking Official Statement submitted by Mr. Lynch was not persuasive and did not demonstrate that Mr. Albritton's work exhibited the ability that a Senior Examiner needed to possess.

 Although the PEEB denied Mr. Albritton's renewed request for a promotion, it offered an alternative method of review of Mr. Albritton's application, if he were to apply a third time. Rather than requiring the submission of another Ranking Official Statement, the PEEB offered to randomly review a number of the patent applications that Mr. Albritton had worked on during 1992. *fn3"

 On September 1, 1992 Mr. Kelly and Mr. Albritton agreed to this alternative method of review and submitted a list of all the patent applications that Mr. Albritton had worked on in the preceding twelve months. The PEEB randomly selected and reviewed twelve of the applications. Based upon their review of Mr. Albritton's work on these applications, the PEEB concluded that his work did not meet the high quality standards required of a Senior Examiner. Consequently, on May 6, 1993, the PEEB denied Mr. Albritton's application.

 On May 26, 1994, Mr. Kelly submitted a fourth application for promotion to the PEEB on behalf of Mr. Albritton. At the time of the PEEB's review in July 1994, Mr. Kelly was no longer the Group Director; Mr. Joseph Rolla (Mr. Rolla) had replaced him. Mr. Rolla therefore submitted to the PEEB a review of Mr. Albritton's most current work. In this review, Mr. Rolla found several errors in Mr. Albritton's work. On August 3, 1994, the PEEB denied Mr. Albritton's fourth application for promotion. After receiving this denial, Mr. Albritton did not submit another application for promotion. He retired on September 3, 1994.

 Prior to his retirement, Mr. Albritton contacted an Equal Employment Opportunity (EEO) counselor on September 1, 1994. On October 14, 1994, he filed a formal discrimination complaint with the Office of Civil Rights of the Department of Commerce (the Agency). In his complaint. Mr. Albritton characterized the denial of his four applications for promotion as a single and continuous act of discrimination against him. The Agency reviewed Mr. Albritton's formal complaint and concluded that he did not meet the criteria for establishing a continuous violation. Rather, the Agency found that Mr. Albritton raised four separate and distinct incidents of alleged discrimination occurring on December 6, 1991, August 2, 1992, May 6, 1993, and August 3, 1994. The Agency dismissed the first three allegations as being untimely since Mr. Albritton had not contacted an EEO counselor until September 1, 1994. The fourth allegation dated August 3, 1994 was found to be timely. The Agency, however, dismissed the fourth allegation because Mr. Albritton's retirement had, in its opinion, rendered it moot.

 Mr. Albritton was notified by the Agency of his right to appeal the decision to the Equal Employment Opportunity Commission (EEOC) or to file a civil lawsuit in district court. On March 30, 1995, the plaintiff filed the present action. The plaintiff seeks a: (1) declaratory judgment that the acts of the USPTO were violative of the laws of the United States; (2) judgment enjoining the defendant from continuing to discriminate against him; and, (3) judgment ...


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