question is therefore whether any present violation exists. Id. (citing Evans, 431 U.S. at 558).
In order to save claims for which an administrative claim was not timely-filed, the plaintiff must properly allege the continuing violation theory in both the administrative complaint and the formal complaint before the court. Caliendo v. Bentsen, 881 F. Supp. 44, 47 (D.D.C. 1995) (citing Graham v. Adams, 640 F. Supp. 535, 538 (D.D.C. 1986)). However, because administrative complaints are enforced by laypersons, who are unaccustomed to preparing pleadings, administrative complaints should be read liberally. Caliendo, 881 F. Supp. at 47. Mr. Albritton properly alleged the continuing violation theory in his administrative complaint and his complaint presently before this court.
1. Timely-Filed Present Violation
In analyzing an alleged continuing violation, the court first examines whether an actual violation occurred within the statutory period. Palmer, 17 F.3d at 1496; Evans, 431 U.S. at 558. There must be a present violation, not merely the effects of a past discriminatory event, for which the plaintiff has made a timely administrative charge. Id.; Ricks, 449 U.S. at 257; Scott, 469 F. Supp. at 25. In an employment discrimination case, the plaintiff has the burden to plead and prove any equitable reasons for failing to meet the requirement of bringing the Title VII complaint to the attention of the agency's EEO counselor within the mandated time frame. Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 94-95, 112 L. Ed. 2d 435, 111 S. Ct. 453 (1990); Saltz v. Lehman, 217 U.S. App. D.C. 354, 672 F.2d 207, 209 (D.C. Cir. 1982).
Mr. Albritton did not contact an EEO counselor within 30 days of his failure to be promoted in December 1991, August 1992, and May 1993. He does not contend that he was unaware of the 30-day time limit or that circumstances prevented him from timely presenting his claims. Mr. Albritton, however, did contact an EEO counselor on September 1, 1994, after the PEEB had again refused to promote him on August 6, 1994. Thus, the charge concerning the PEEB's refusal to promote him in August 1994 was timely filed.
2. Substantially Related Events
The second question in the continuing violation analysis is whether or not the discriminatory act was either a part of a series of related discriminatory acts or was caused by a discriminatory system in effect both before and during the limitations period. Palmer, 17 F.3d at 1496; Shepard, 670 F. Supp. at 25.
To determine whether discriminatory acts are discrete and isolated or are sufficiently related to constitute a series of related discriminatory acts, courts widely use a three-part test set forth in Berry v. Board of Supervisors of LSU, 715 F.2d 971, 981 (5th Cir. 1983). See Shepard, 670 F. Supp. at 25. Three questions comprise this test: (1) do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? (2) with regard to the frequency of the acts, are the alleged acts recurring or more in the nature of an isolated decision? (3) does the act possess a degree of finality that would alert an employee of a need to assert his or her rights? If the employee could not perceive discrimination until a series of acts occurred, then the employee should be able to plead the earlier, time-barred claim. See Berry, 715 F.2d at 981; Shepard, 670 F. Supp. at 25.
In this case, Mr. Albritton's allegations satisfy the three elements of the continuing violation test. First, Mr. Albritton alleges that all of the non-promotions involved the same type of discrimination, i.e. racial. Specifically, he maintains that due to his race, the PEEB altered its review standards when considering his three applications for promotion. Moreover, Mr. Albritton applications were for the same position and were rejected by the same review board, the PEEB.
Second, as the promotion denials occurred at ten to fifteen month intervals they may indicate a recurring pattern of discrimination.
Third, Mr. Albritton may not have been aware of the PEEB's discriminatory actions until it had denied him the promotion four times because the PEEB continually provided Mr. Albritton with additional opportunities to apply for the promotion.
Consequently. Mr. Albritton contends that, although ultimately unsuccessful, he attempted to satisfy the changing standards the PEEB set forth. These facts establish that the alleged discriminatory behavior involved the same racial discrimination, occurred repeatedly, and would not have alerted an employee of his duty to assert his right after a single denial. The court therefore concludes that Mr. Albritton has properly alleged that a nexus exists between the past events and the timely-filed claim.
Mr. Albritton has properly alleged a continuing violation thereby vesting this court with jurisdiction over his claims relating to his December 1991, August 1992, and May 1993 non-promotions.
C. Failure to Promote in August 1994
The defendant contends that it has articulated a legitimate non-discriminatory reason for not promoting Mr. Albritton in August 1994. The defendant does not allege that Mr. Albritton has failed to establish a prima facie case of discrimination.
Once a plaintiff succeeds in establishing the prima facie case, the burden then shifts to the employer to articulate some legitimate, non-discriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. The employer must only produce admissible evidence which would allow the trier of fact to rationally conclude that the decision was not motivated by discriminatory animus. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). If the defendant rebuts the presumption of discrimination by illustrating that the plaintiff was rejected for a legitimate, non-discriminatory reason, the plaintiff must prove by a preponderance of the evidence that the legitimate reasons claimed by the defendant are not the true reasons for the decision but merely a pretext for discrimination. Id. at 252-254; Batson v. Powell, 912 F. Supp. 565, 577 (D.D.C. 1996).
The defendant maintains that Mr. Albritton has failed to establish that the defendant's legitimate, non-discriminatory reason for denying Mr. Albritton a promotion is a pretext. The defendant claims that the PEEB denied Mr. Albritton's application for promotion because he could not demonstrate that he possessed the skills, knowledge, and ability required of a Senior Examiner. Specifically, the defendant asserts that after conducting a performance review of Mr. Albritton's work both a PEEB member and Mr. Albritton's Group Director, Mr. Rolla, confirmed that Mr. Albritton was not performing at a consistently high level to justify his promotion to the GS-15 Senior Examiner position.
Conversely, Mr. Albritton asserts that the PEEB's requirement to have his daily work product reviewed was not an attempt to help him but a pretext to facilitate the denial of his application. He asserts that the PEEB had never engaged in such conduct with anyone else and was attempting to find a reason to deny him the promotion. Mr. Albritton further claims that the PEEB's reasons for not promoting him were in direct conflict with the ratings and opinions of his work by his Group Director, his Supervisor, Ranking Officials, and other experts and examiners. Mr. Albritton, in accordance with the promotion procedures, submitted evidence that his Group Director, as well as his Supervisory Primary Examiner, other patent examiners, and personnel within the Patent Documentation area recognized him as having superior technical expertise. In addition, Mr. Albritton points out that his Group Director, Mr. Kelly, submitted a fourth application on his behalf because he believed that Mr. Albritton had made impressive progress in the areas which the PEEB had previously advised Mr. Albritton that he needed to improve.
Moreover, Mr. Albritton asserts that the PEEB utilized subjective elements not based on merit to evaluate his application. For example, with respect to his first application, the PEEB dismissed the testimonials submitted on Mr. Albritton's behalf because they appeared to have been solicited in violation of the PEEB's procedures. Mr. Kelly, however, provided information to the PEEB to illustrate that the testimonials were wholly spontaneous and unsolicited and thus in conformity with PEEB standards. Upon review of Mr. Kelly's submissions, the PEEB concurred with Mr. Albritton and accepted the testimonials. In addition, when the PEEB dismissed his second application, it contended that Mr. Albritton's Ranking Official statement was not persuasive. Mr. Albritton asserts, however, that the official materials regarding a Ranking Official statement only mandate that the statement be "truthful" and not that it be persuasive."
He therefore avers that the PEEB improperly utilized subjective review standards that were not formally required. Viewing the facts in the light most favorable to him, the court concludes that Mr. Albritton has produced some objective evidence that could lead a reasonable juror to conclude that the defendant's proffered reasons for denying him the promotion were pretextual.
D. The August 3, 1994 Claim is Not Moot
The defendant asserts that since Mr. Albritton retired from federal service on September 3, 1994, there is no reasonable expectation that the alleged discrimination in the evaluation of his eligibility for Senior Examiner status will recur. The defendant also asserts that if the PEEB had granted Mr. Albritton the promotion to Senior Examiner on August 3, 1994, it would only have occurred approximately nine days prior to his retirement. The defendant, therefore, argues even a promotion retroactive to this period would have no appreciable effect on his retirement pay. As a result, the defendant contends that Mr. Albritton's claim is rendered moot.
A case is moot when "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." County of Los Angeles v. Davis, 440 U.S. 625, 631, 59 L. Ed. 2d 642, 99 S. Ct. 1379 (quoting Powell v. McCormack, 395 U.S. 486, 496, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969)). A case becomes moot only if: (1) there is no reasonable expectation that the alleged violation will recur; and, (2) if interim relief and events have completely and irrevocably eradicated the effects of the alleged violation. Id. When both of these conditions are met, the case is moot because neither party has a legally cognizable interest in the final determination of the questions of fact and law. Id.
Mr. Albritton has filed suit seeking declaratory and injunctive relief in addition to reinstatement to the GS-15 Senior Examiner level, back pay, compensatory damages, and attorney's fees. He retired in good standing and could be restored to a GS-14 classification job and subsequently promoted. Mr. Albritton maintains a cognizable interest in the resolution of this suit since he could be awarded compensatory damages, back pay and other equitable relief as well as attorney's fees. Furthermore Mr. Albritton's retirement did not eradicate the effects of the PEEB's alleged discriminatory conduct against him. See Elizey v. Espy, 1995 WL 6277, *6 (E.D.La. 1995). The fact that the plaintiff voluntarily removed himself from his position at the Patent Office does not affect the justiciability of his claimed civil rights violations that preceded his decision to retire.
The court therefore concludes that Mr. Albritton's pre-retirement discrimination claims are not rendered moot by his retirement.
Accordingly, it is this 15 day of August 1996,
ORDERED that the Defendant's motion to dismiss or in the alternative for summary judgment, be and is hereby denied.
Ricardo M. Urbina
United States District Judge