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BONDS v. HEYMAN

January 14, 1997

PATRICIA BONDS, Plaintiff,
v.
IRA MICHAEL HEYMAN, Defendant.



The opinion of the court was delivered by: LAMBERTH

 This matter comes before the court on plaintiff's motion for partial summary judgment, defendant's motion to dismiss and for summary judgment, and plaintiff's motion for a preliminary injunction to prevent the defendant Smithsonian Institution from eliminating plaintiff Bonds' position at the National Postal Museum. For the reasons stated below, plaintiff's motion for partial summary judgment will be denied, as will defendant's motion to dismiss and for summary judgment; plaintiff's motion for a preliminary injunction will be granted. *fn1"

 BACKGROUND

 Plaintiff, an African-American female aged 58 has been employed by the Smithsonian Institution since 1957. In 1988, she filed a discrimination suit against the Smithsonian, naming Assistant Secretary Tom L. Freudenheim as one of the allegedly discriminating officials. Pl.'s Stat. of Facts not in Disp., Jan. 22, 1996 at 1. That case was settled in 1990.

 In 1991, Bonds, then a GS-13 Program Analyst in the Office of the Assistant Secretary for the Arts and Humanities ("OASAH"), alleges that she was interested in promotion to GS-14 Program Analyst, the slot held by Barbara Pierce. Pl.'s Stat. of Facts not in Disp. at 3. Pierce left, and in late 1992 Freudenheim hired a white male aged 33 for that position *fn2" Bonds was not given an opportunity to compete. Whether this failure to promote the plaintiff to this position was an act of discrimination or retaliation for Bonds' earlier complaint against Freudenheim comprises the key underlying issue in this case.

 In the meantime, Bonds was detailed in November 1993 to the National Postal Museum and then promoted to a GS-14 position, that of Assistant Director for Finance and Administration, in September of 1994. She has served at this position and grade since then. The Smithsonian, however, has announced that it is eliminating Bonds' job as part of a reduction-in-force ("RIF") plan. Bonds, due to be fired on November 4, 1996 was granted a TRO by this court on November 1, 1996 -- extended by agreement to January 15, 1997 to allow briefing -- after claiming the RIF was retaliatory in nature. Bonds now prays for a preliminary injunction against the defendant, allowing her to maintain her position at the museum until trial on the merits can resolve the issue.

 For the reasons stated below, plaintiff's motion for partial summary judgment on the underlying failure to promote action is denied, as is defendant's motion to dismiss and for summary judgment. Plaintiff's request for a preliminary injunction is granted.

 DISCUSSION

 A. Summary Judgment

 Plaintiff has filed for partial summary judgment in this case, asking the court to rule, as a matter of law, that the Smithsonian acted illegally in using federal funds to pay Haas' salary, and as a result it may not rebut Bonds' prima facie case. Defendant has filed a motion to dismiss and for summary judgment.

 Summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Inferences drawn from the facts must be viewed in the light most favorable to the party opposing the motion. E.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).

 With respect to plaintiff's motion for partial summary judgment, that must be denied. Plaintiff has presented no evidence which would permit this court to rule, as a matter of law, that the Smithsonian's system of funding Haas' position is illegal by its very nature. The Smithsonian has a dual system of funding its personnel, one which is federal and subject to federal regulations, and another which is administered by a private trust fund, and subject to a separate, but often similar, set of Smithsonian regulations. Plaintiff alleges that the defendant, as a way to avoid placing Pierce's GS-14 position in competition -- where Bonds would be able to openly compete for it -- "swapped" the federal money used to fund that position for trust money, to allow a clandestine, or in the words of the plaintiff, "secret recruitment" for that position. Haas, serving as a trust fund employee elsewhere in the Smithsonian, was hired for Pierce's position, but now the position was a trust fund position. Plaintiff Bonds was not considered for the promotion, and claims the entire manner by which the position was kept from open competition was illegal.

 Defendant responds that there is nothing illegal about the procedures that were followed, and further, that "Smithsonian personnel policies applicable to trust fund employees, which are modeled on federal personnel policies, allow the non-competitive reassignment of a Smithsonian trust fund employee to another Smithsonian position at the same grade level." Def.'s Mem. of Points and Auth., Feb. 8, 1996 at 24. The Smithsonian paints a picture of this transfer as a run-of-the-mill process, without illegal taint.

 With all favorable inferences given the defendant on plaintiff's motion for partial summary judgment, it is impossible, at this time, to grant plaintiff's motion. The issue of whether the non-competitive recruitment was, in fact, a "shell game" used to cheat plaintiff out of a promotion in retaliation for her previous filing of a sexual harassment complaint, or whether Freudenheim, in a legal and nondiscriminatory manner, merely used this process to select the best person for the job, is an issue best left to the jury.

 With respect to defendant's motion to dismiss and for summary judgment, this, too, must be denied. Contrary to defendant's assertion, Bonds has, indeed, established a prima facie case of discrimination, and has put forth enough evidence to establish that the denial of her promotion may have been pretextual. Plaintiff clearly survives defendant's motion to dismiss.

 As well, she survives defendant's motion for summary judgment, given the multitude of factual disputes in this case. One particular area necessitates special discussion, however, because it cuts to the heart of this court's jurisdiction. That is the issue of whether Bonds has forfeited her cause of action for failure to seek administrative review in a timely fashion. An employee claiming unlawful discrimination under Title VII has 45 days to consult with an equal employment opportunity [EEO] counselor. 29 C.F.R. § 1614.105(a)(1). If Bonds failed to comply in a timely manner with the statutory requirements for handling a discrimination complaint, then the court has no choice but to dismiss, unless there exist grounds for equitable tolling.

 Rick Haas, the person Freudenheim is alleged to have promoted in lieu of Bonds, was first brought into Freudenheim's office with this new job on November 1, 1992. Yet, Bonds did not meet with an EEO counselor until April 13, 1993, or file an EEO complaint with the Smithsonian until May 20, 1993: over six months after Haas's promotion. The reason for this delay is hotly contested. *fn3"

 Plaintiff maintains that she did not know until March 18, 1993, that Haas was appointed her supervisor, and this was the defining event which led her to believe she would never be promoted to Pierce's position. Within 45 days of learning that Haas was made her supervisor, Bonds filed an EEO complaint alleging age, race, and sex discrimination.

 Defendant paints a completely different picture of events, however. The Smithsonian asserts that Bonds knew as early as October 29, 1992, and certainly by December 4, 1992, that Haas was hired to take Pierce's position, and Bonds knew by then she would not be promoted. To this end, the Smithsonian produces much evidence suggesting that Bonds knew, well before her May 20, 1993 filing, that Haas was in a grade 14 position, and that federal funds used to pay for Pierce's post would be diverted to fund Haas's position. Thus, defendant argues that Bonds was quite aware she would not be eligible for promotion to Pierce's grade 14 Program Analyst slot. Furthermore, the Smithsonian views as spurious Bonds' claim that she first learned she had been passed over for promotion when she was informed Haas was made her supervisor. After all, Pierce had not been Bonds' supervisor, so why would learning that Haas received this duty be the point where Bonds discovered injury? Thus, defendant wants Bonds out-of-court for failing to act in a timely manner on her complaint.

 The Government, mounts formidable evidence to suggest that even when taken in a light most favorable to plaintiff, she cannot press a case in federal court since she has failed to prove she filed a timely administrative complaint.

 But there are numerous difficulties with defendant's assertions, as well. For example, the Smithsonian seems to allege that it was well known Haas would be filling Pierce's slot, but also indicates that a completely new trust fund position was being created for him. But if a new position were being created for Haas -- a position which did not formally crystallize for another year -- then Bonds should not have had reason to believe she was being kept from contention for Pierce's position. Indeed, defense counsel suggested at motions hearing on November 1, 1996 that Haas continued to operate in his "new" position, (a matter further complicated by the fact that it was funded by the Smithsonian's trust funds, not, as Pierce's position was, by federal monies) while Pierce's Program Analyst position remained unfilled. Essentially, the government's position boils down to the suggestion that Bonds should have known she would not be promoted to Pierce's position because Haas already had it -- even though defendant argues at the same time that he really held a different position.

 Most telling is the exchange of letters that occurred between Claudine Brown, Bonds' supervisor, and Bonds, on March 18, 1993 and March 22, 1993: the very exchange which led Bonds to file a complaint.

 Apparently, Bonds had tried to schedule meetings with Brown, but these were always scrubbed for one reason or another. On March 18, 1993, Brown wrote to Bonds:

 If it were so clear that Bonds would be unable to take Pierce's GS-14 position as of October 29, 1992 or December 4, 1992 as the government argues, why didn't Brown indicate this? If anything, she gives every indication that a GS-14 promotion was still possible for Bonds in March of 1993.

 Bonds' reply on March 22, 1993 is also important. There, she writes:

 
In no offense to Rick [Haas], there is no plausible reason to schedule a preliminary meeting with him (whom you state is my immediate supervisor) to discuss a promotion to the same grade he occupies. This has now led to a larger and more complex issue, which is how do I get promoted to a GM-14? It is quite obvious my opportunity for promotion was lost when Rick was reassigned as a grade 14 to this office and appointed my immediate supervisor. Concurrently, his reassignment has had an adverse impact on my ability to be promoted to a GM-14. As to my most recent accomplishments, they are documented in my FY 92 performance plan and appraisal, and I believe my request is justified because I have been in the same grade since 1987.

 Especially given this dialog, this court cannot conclude, as a matter of law, that Bonds' complaint was untimely. Therefore, defendant's motion for summary judgment on Count I of the complaint is denied.

 B. Preliminary Injunction

 There are essentially three preliminary injunction questions placed before the court. First, whether plaintiff must exhaust available administrative remedies with respect to her discharge under the RIF before seeking an injunction; second, whether plaintiff, in a case involving government personnel decisions, should be required to make a heightened showing of harm as opposed to the typical "irreparable" showing for a preliminary ...


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