Plaintiff's response invokes the "continuing violation" doctrine, which is generally applied to excuse exhaustion for a series of related acts that occurred before a timely presented claim. See Webb v. District of Columbia, 864 F. Supp. 175 (D.D.C. 1994); see, e.g., Albritton v. Kantor, 944 F. Supp. 966 (D.D.C. 1996); Valentino, supra, 674 F.2d 56 at 66. The "continuing violation" alleged in this case, however, involves acts or omissions that occurred concurrent with and after plaintiff's May 1992 complaint.
Plaintiff's suit is limited to claims that are like the allegations that were administratively charged or reasonably expected to grow out of the ensuing investigation. Park v. Howard University, 315 U.S. App. D.C. 196, 71 F.3d 904, 907 (D.C. Cir. 1995), cert. denied, 136 L. Ed. 2d 20, 117 S. Ct. 57 (1996). Administrative complaints are to be liberally construed and should be interpreted in the context of the entire administrative record. President v. Vance, 200 U.S. App. D.C. 300, 627 F.2d 353 (D.C. Cir. 1980). The question that must be addressed in this case is whether the Department was on notice that plaintiff was complaining of that concurrent and later conduct. If the answer is yes, plaintiff is considered to have exhausted his administrative remedies with regard to that conduct. See Loe v. Heckler, 247 U.S. App. D.C. 292, 768 F.2d 409, 420 (D.C. Cir. 1985).
Plaintiff's May 1992 complaint referred (without naming them) to three other GS-13 positions for which he had applied, and his grievance, filed at the same time, cited (also without specification) five instances of nonselection for GS-13 positions. The complaint and other documents in the administrative record thus put the Department on notice that plaintiff was complaining, not just about his nonselection for 91-509 and 91-463, but generally about his nonselection for a GS-13 position despite having submitted numerous applications for such positions. See President, 627 F.2d at 361-62; see also Webb, 864 F. Supp. at 184 (informal grievances put employer on notice of allegations not in administrative charge). The positions for which plaintiff applied from August 1991 to May 1992 fall within the scope of his administrative complaint.
The positions for which plaintiff applied after his May 1992 complaint, and outside of the charge-filing period, cannot be the subject of this lawsuit. It is true that an employee is not required to file subsequent administrative charges if the employer was on notice of a claim that its actions violated Title VII and was afforded an opportunity to pursue a mutually satisfactory resolution with the employee. See Loe, 768 F.2d at 418, 420. But an employee may not maintain an action on claims that were never presented for agency consideration. Id. at 420. Plaintiff's May 1992 complaint did not allege that the acts of discrimination were of a continuing nature. Nor is there any evidence to suggest that plaintiff put the employer on notice that it had violated Title VII through post-charge conduct. The claims of nonselection for positions that plaintiff applied for after May 14, 1992 must accordingly be dismissed.
Claims of retaliation may be raised for the first time in federal court, Webb, 864 F. Supp. at 184, particularly where, as in this case, the claimant has filed an earlier administrative complaint of reprisal and alleges further retaliation as a result. Id. To the extent that the claims of nonselection are also alleged as acts of retaliation, they are encompassed within this action.
Defendant's motion for summary judgment is premature as it relates to plaintiff's surviving action. Plaintiff's pleadings demonstrate that without further discovery he is unable to present facts essential to justify his opposition. Plaintiff's request for a continuance will be granted, and the parties will be directed to submit a revised scheduling order.
One outstanding issue can be resolved without awaiting completion of discovery, however. Defendant moves to strike plaintiff's claims for compensatory damages for actions with regard to claims that arose before the effective date of the Civil Rights Act of 1991: the 1990 failure to select a team leader; the 1990 performance evaluation; and allegations of denigrating words in 1990. Plaintiff's response concedes that he is not entitled to a jury trial or compensatory damages on those claims, but he argues that evidence of those claims may nevertheless be relevant at trial for context and background. The concession moots defendant's motion to strike.
* * * *
An appropriate order accompanies this memorandum.
United States District Judge
Dated: January 20, 1998
For the reasons set forth in the accompanying memorandum, it is this 20th day of January, 1998,
ORDERED that defendant's motion to dismiss [# 18-1] is granted in part and denied in part. It is
FURTHER ORDERED that, with respect to the counts not dismissed, defendant's motion for summary judgment [# 18-2] is denied. And it is
FURTHER ORDERED that a status conference is set for 4:30 p.m., February 4, 1998.
United States District Judge