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CONES v. SHALALA

November 25, 1996

KENNETH L. CONES, Plaintiff,
v.
DONNA E. SHALALA, Secretary, Department of Health and Human Services, Defendant.



The opinion of the court was delivered by: RICHEY

 Before the Court in the above-captioned case are the defendant's Motion to Dismiss or, in the alternative, for Summary Judgment and the plaintiff's Opposition thereto. The Court heard oral arguments at a pre-trial conference on November 14, 1996. Based on the arguments, the pleadings, the entire record herein, and the law applicable thereto, the Court granted summary judgment for the defendant. *fn1" The Court shall more particularly set forth the basis for its ruling in the present Memorandum Opinion.

 BACKGROUND

 In particular, the plaintiff's complaint is based on occurrences between 1989 and 1993. The plaintiff alleges that he was subjected to discrimination when he was not selected for positions in June 1989, in July 1990, in April 1991, and in November 1991. He further alleges that in July 1990 he was discouraged from applying for a position by his supervisor and that in October 1991 he was denied the opportunity for a career enhancing assignment. Furthermore, the plaintiff alleges that he was discriminated against in January 1993 and was subjected to reprisal for filing an EEO Complaint when he was denied the position of Director of the Division of Special Programs Coordination, GM-15. see Compl. P 17-29.

 As more particularly set forth below, the plaintiff's claims of race discrimination based on incidents occurring prior to December 15, 1992 are barred because the plaintiff failed to timely contact an EEO Counselor. As to the remaining claims of discrimination and retaliation, the plaintiff cannot demonstrate that he can sustain his burden of proof at trial.

 DISCUSSION

 I. THERE ARE NO GENUINE ISSUES OF MATERIAL FACT AND THE DEFENDANT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW.

 The Court must grant summary judgment for the moving party 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." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (citing Fed. R. Civ. P. 1).

 An issue must be both genuine and material to preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. An issue is genuine if there is sufficient evidence to support a rational finding either way. In making this determination, the non-movant's evidence "is to be believed, and all justifiable inferences are to be drawn in [their] favor." Id. at 255. A issue is material if it "might affect the outcome of the suit." Id. at 248.

 In ruling on a motion for summary judgment, the Court must "view the evidence presented through the prism of the substantive evidentiary burden" that would apply at the trial on the merits. Id. at 252, 254. The judge's inquiry asks "whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Id. at 252 (citation omitted). The judge must "bear in mind the actual quantum and quality of proof necessary to support [a verdict]." Id. at 254.

 The burden is on the movant to show that there is no genuine issue of material fact and that the opposing party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322-23. When the moving party has met its burden, the burden shifts to the non-movant to "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587. The non-movant may not rest upon "mere allegations or denials," or on the hopes that at trial evidence put on by the moving party may simply be disbelieved, but must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e).

 A. The Plaintiff's Discrimination Claims Based On Occurrences That Predate December 15, 1992 Are Barred Because The Plaintiff Failed to Timely File an EEO Complaint.

 "[A] timely administrative charge is a prerequisite to initiation of a Title VII action in the District Court." Jarrell v. United States Postal Serv., 243 U.S. App. D.C. 350, 753 F.2d 1088, 1091 (D.C. Cir. 1985) (citing Brown v. General Servs. Admin., 425 U.S. 820, 832-33, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976)). The governing regulations impose time requirements to file an EEO complaint, stating that the aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory. 29 C.F.R. 1614.105(a)(1). *fn2"

 The plaintiff first contacted an EEO Counselor on January 29, 1993. Thus, the governing regulations render untimely an EEO complaint based on any allegedly discriminatory event that the plaintiff knew or reasonably should have known about before December 15, 1992.

 The plaintiff raises claims of discrimination based on seven events that occurred before December 15, 1992. The plaintiff asserts, however, that the untimeliness of his EEO complaint is not a bar to suit, based either on the "continuing ...


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