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KEITH v. DUFFEY

September 30, 1999

GEORGE M. KEITH, PLAINTIFF,
v.
JOSEPH DUFFEY, DIRECTOR, UNITED STATES INFORMATION AGENCY, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman, District Judge.

  MEMORANDUM OPINION

This case is before the Court on defendant's motion to dismiss or for summary judgment. Plaintiff alleges that defendant discriminated against him on the basis of his race when it refused to promote him to a GS-9 position in 1989 and subsequently discriminated and retaliated against him when it changed the title and duties of his position in 1994. Defendant has moved to dismiss all of plaintiff's claims on the grounds that (1) he did not file his 1989 promotion claim at the administrative level in a timely manner, (2) he has not made out a prima facie case for any of this claims, and (3) he has not demonstrated that defendant's asserted legitimate, non-discriminatory and nonretaliatory justifications for the personnel actions were pretextual. The Court will dismiss plaintiff's 1989 promotion claim as untimely and will dismiss plaintiff's other discrimination claim for failure to establish a prima facie case. Plaintiff's retaliation claim, however, survives.

I. BACKGROUND

Plaintiff George M. Keith is an African American man who has been employed by the United States Information Agency ("USIA") since 1964. Beginning in July of 1986, he worked as a GS-8 Radio Production Assistant for the USIA's Voice of America program. Soon after beginning the job, plaintiff filed a request with the Office of Personnel Management ("OPM") that his position be reclassified as a higher grade. After conducting an evaluation of plaintiff's position, however, OPM concluded that plaintiff's position should be reclassified at a GS-5 level. Plaintiff was put in a "save pay" situation — apparently, he was paid at a GS-8 level even though his job was classified as a GS-5 position — until 1989, when he was transferred to the position of Supervisory News Assistant.

Plaintiff's new position also was compensated at a GS-8 level. In his letter accepting the position, however, plaintiff noted his objection to the pay level and expressed his concern that he was not being compensated at a higher level because of his race. See Gov't Motion, Exh. 9 at 3. Over the next few years, plaintiff attempted to have his new position reclassified at a GS-9 level. The USIA requested that its personnel office evaluate plaintiff's request. Once again, the review concluded that a pay level increase was not warranted.

In 1994, plaintiff's position title was changed again to "News Traffic Manager" or "Bubble Operator." This position was still compensated at a GS-8 level but no longer included any supervisory duties. As a result of the change, plaintiff filed a formal administrative complaint alleging that he was denied a promotion in 1989 because of racial discrimination and that his position was changed in 1994 because of racial discrimination and retaliation. The EEOC rejected plaintiff's claims, last affirming its decision on March 12, 1998. Plaintiff brought this lawsuit on June 10, 1998.

II. DISCUSSION

A. Plaintiff's 1989 Claim

Defendant first argues that plaintiff did not bring his administrative claim concerning his 1989 assignment to the position of Supervisory News Assistant in a timely manner. The parties agree that, under the then-relevant regulations, plaintiff was required to contact an EEO counselor within thirty days of an allegedly discriminatory act. See 29 C.F.R. § 1613.214(a)(1)(i) (1989). The parties also agree that plaintiff did not bring his 1989 claims during this time period. The Court therefore should dismiss plaintiff's 1989 claims as untimely unless some equitable reason exists to excuse his late-filed administrative complaint.

Plaintiff contends that the Court should excuse his untimely filing because defendant's conduct in 1989 is part of a "continuing violation." In order to find a "continuing violation," plaintiff must show a "series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the statutory period." Hunt v. D.C. Dep't of Corrections, 41 F. Supp.2d 31, 35 (D.D.C. 1999) (quoting Milton v. Weinberger, 645 F.2d 1070, 1074-75 (D.C.Cir. 1981)). The Court must ask (1) "whether an actual violation of Title VII occurred during the statutory period," and (2) "whether this discriminatory act either was 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 v. Kelly, 17 F.3d 1490, 1496 (D.C.Cir. 1994).

Plaintiff contends that defendant's actions in 1989 were part of a series of discriminatory acts that culminated in the change of his position and duties in 1994. Specifically, he argues that he accepted the 1989 position with the understanding that he would receive training for a supervisory position, was denied the training and supervisory duties over the next five years, and finally was officially stripped of any supervisory duties in 1994.

The Court cannot agree. Plaintiff has provided no evidence to support a conclusion that any common nexus existed between the 1989 and 1994 actions. The two actions occurred as a result of separate evaluations of defendant's positions by different organizations, related to different aspects of plaintiff's employment (salary versus duties), are not alleged to have been made by the same person and are not linked in any other way that the Court can discern. Defendant's 1989 action therefore is a distinct occurrence from its 1994 action and is not part of a "a series of related discriminatory acts." Palmer v. Kelly, 17 F.3d at 1496; see also Cones v. Shalala, 945 F. Supp. 342, 346 (D.D.C. 1996) ("[A] plaintiff must show the events are interrelated and form a common nexus or theme"). Finally, even if the facts of this case could support a finding of a "continuing violation," the Court would hesitate to extend such equitable relief to plaintiff when he demonstrated knowledge of the existence of a potential claim in his 1989 letter accepting the position of Supervisory News Assistant but failed to act at that time. See Gov't Motion, Exh. 9 at 3 ("expressed concern, as a black person, with . . . the assignment of this supervisory position as a GS-8 rather than a GS-9 or above"). The Court therefore will dismiss plaintiff's claim regarding his assignment to the position of Supervisory News Assistant in 1989.

B. Plaintiff's 1994 Claims

Defendant contends that the Court should dismiss plaintiff's claims regarding the change in his position title and duties in 1994 because he has not made out a prima facie case and has not rebutted defendant's asserted legitimate, nondiscriminatory and nonretaliatory justification for its actions. In order to prevail in a case initiated under Title VII, the plaintiff initially must establish a prima facie case of prohibited discrimination or retaliation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the plaintiff succeeds in making out a prima facie case, the burden of production shifts to the defendant to articulate some legitimate, non-discriminatory reason for the challenged action. Id. Once the defendant articulates a sufficient reason, the presumption raised by the prima facie case is rebutted, and the burden shifts back to the plaintiff to produce some evidence, either direct or circumstantial, to show that the defendant's proffered reason for its actions is a mere pretext for discrimination or retaliation. Id. at 802-05, 93 S.Ct. 1817; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Summary judgment "is appropriate where either the evidence is insufficient to establish a prima facie case, . . . or, assuming a prima facie case, there is no genuine issue of material fact that the defendant's articulated non-discriminatory reason for the challenged decision is ...


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