The opinion of the court was delivered by: Robertson, District Judge.
Plaintiff sues under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., alleging racially discriminatory
denial of job training and retaliation for filing an EEOC
complaint. Defendant moves to dismiss or for summary judgment.
The motion for summary judgment must be granted because plaintiff
asserted his discrimination claim too late, and because plaintiff
has not made out a prima facie case of retaliation.*fn1
Between 1991 and July 1992, Charles Simms, a long-time
Government Printing Office ("GPO") employee, was detailed as a
journeyman keyboard operator in the Federal Aviation
Administration ("FAA") section of the Electronic Photocomposition
Division ("EPD"). Def.'s Facts ¶ 1. The FAA section was organized
in 1989 to convert the software used for the production of FAA
documents from the old ATEX system to a newer kind of software
called Interleaf. Pl.'s Facts ¶ 1.
When Mr. Simms and another African-American male — both
"keyboard operators" — were brought into the section, most of the
conversion work had been completed. Def.'s Facts ¶ 5. As his
supervisors understood it, Mr. Simms' duties were to "key and
prep data" and to perform trial production runs of the new
software in an effort to identify problems that others could
later remedy before a similar system was put into place in an FAA
satellite office in Atlantic City, New Jersey. See id. ¶ 7. Mr.
Simms had a different expectation. He apparently envisioned
learning the same computer skills as two white employees
(Elizabeth List and George Gregory) who had the title of
"proofreader" and who had been working on the project since its
inception. Pl.'s Facts ¶ 1.
Mr. Simms's claim of discrimination asserts that, during his
tenure at the FAA section, he was denied training opportunities
based on his race and given "virtually no responsibility" while
similarly situated white employees were given more training and
better work. See Am.Compl. ¶¶ 13, 19. He provides two — but
only two — concrete allegations of fact to support his claim.
First, he complains that he was not invited to attend training in
October 1991 in Atlantic City on the new Interleaf software
system, while Ms. List, Mr. Gregory, and Mr. Simms's supervisor,
Carl A. Zoeller (white), did attend. See id. ¶¶ 23-24. Second,
he complains that, in late 1991, Mr. Zoeller made "a joking
gesture" in front of Ms. List and Mr. Gregory and "looked over at
[him] and the other black employee, and said: `Look at them.
They look like two crows sitting on a fence.'" Am.Compl. ¶ 33.
Mr. Simms first contacted GPO's EEO office about these
allegations of discrimination on February 21, 1992. See Def.'s
Facts ¶ 11. On April 1, 1992, he filed a formal complaint of race
discrimination. See id. ¶ 12. The complaint was investigated,
and Mr. Simms received a copy of the investigative report ("IR").
See id. ¶ 13. A hearing was held before an administrative
judge, who issued a recommended decision finding no evidence of
racial discrimination. See id.; see also Ex. A to Def.'s Mot.
Three years later, in 1995, Mr. Mehlberg stated that he did not
like plaintiff and would not train him. See id. An
administrative judge heard this complaint, and issued a
recommended decision on May 7, 1998, in favor of the defendants.
Discrimination at the FAA Section
GPO's motion seeks dismissal of Mr. Simms's discrimination
claims because he failed to contact an EEO counselor within 30
days of the alleged discriminatory events. Def.'s Mot. at 14-16.
In 1991 and 1992, when the alleged discrimination occurred, a
plaintiff was required to bring discriminatory events to the
attention of an EEOC counselor "within 30 calendar days of the
date of the alleged discriminatory event or personnel action, or
the date that the aggrieved person knew or reasonably should have
known of the discriminatory event of personnel action."
29 C.F.R. § 1613.214(a)(1)(i) (1992).
The training trip to Atlantic City took place in October, 1991.
See IR, Tab 6, pp. 10-12. Mr. Zoeller made the allegedly racist
remark in November or December of 1991.*fn2 See Def.'s Facts ¶
11; IR, Tab 6, p. 10. Mr. Simms first sought EEO counseling on
February 21, 1992, see ...