first allegedly retaliatory action identified by the plaintiff is
the DOE's 1980 "failure" to re-grade the position which he
occupied. However, the court has already indicated that it will
dismiss Mr. Kilpatrick's claims as to the 1980 decision for
failure to exhaust administrative remedies and comply with the
statute of limitations. Consequently, the court begins its
retaliation analysis with the next instance of alleged
retaliation: the DOE's refusal, ten years later (in August 1990),
to "re-grade" Mr. Kilpatrick's position as he thought
appropriate. Id. ¶ 14(b). According to the plaintiff, the DOE
did reclassify the position of Chief of the
Evaluation/Affirmative Action and Data Analysis Unit, in February
1991. Id. The plaintiff then held a grade GS-13 position as
Acting Chief of the Complaint Analysis and Conciliation Unit in
1980, a position which he maintains should have been classified
as a grade GS-14. Id. Plaintiff also asserts that DOE further
retaliated by excluding him from meetings and briefings involving
his duties and by improperly lowering his 1995 performance
The final adverse act alleged by plaintiff occurred in November
1996, when DOE decided not to select him as Director of the
Employment Opportunity Group. Id. The plaintiff alleges that
there is a causal nexus between the 1979 protected activity and
these far-flung events in 1980, 1990 and 1996 because all three
were done in retaliation. See Opp'n to Mot. to Dis. at 9. DOE
responds that a lapse of ten years or more precludes a finding
that there was a causal connection between the plaintiff's
protected activity (the 1979 report) and any alleged retaliation
in the 1990's. See Mot. to Dis. at 15. The plaintiff retorts
that under Third Circuit decisions, the causal nexus is more
important than temporal proximity, and the absence of immediacy
between the cause and effect does not necessarily disprove
causation. See Opp'n to Mot. to Dis. at 9 (citing Kachmar v.
SunGard Data Sys., 109 F.3d 173, 177 (3d Cir. 1997) et al.).
The court concludes that under the decisional law of this
Circuit, the defendant has the better argument on this score.
This circuit has found that temporal proximity may sometimes be
sufficient to establish the requisite causal connection for
retaliation claims. See Gleklen v. Democratic Congressional
Campaign Committee, 199 F.3d 1365, 1368 (D.C.Cir. 2000); see
also Cones v. Shalala, 199 F.3d 512, 521 (D.C.Cir. 2000) (fact
that only a couple of weeks elapsed between plaintiff's
discrimination complaints and refusal to consider the plaintiff
for a position was sufficient to infer causal connection); Chen
v. Gen., 821 F.2d 732, 739 (D.C.Cir. 1987) (causation can be
inferred when adverse action follows "shortly after" protected
activity); Kalekiristos v. CTF Hotel Management Corp.,
958 F. Supp. 641, 665 (D.D.C. 1997) (temporal proximity of remark to
adverse employment decision is a factor to be considered);
Batson v. Powell, 912 F. Supp. 565, 577, 579 (D.D.C. 1996)
(where two employees were terminated in May and June 1994,
respectively, at least one year after they engaged in a protected
activity the filing of an EEO complaint, the Court assumed
arguendo that the times were proximate enough to show
causation, but noted that that outcome was not mandated); accord
Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 443 (4th Cir.
1998) (noting that "very little evidence of a causal connection
is required to establish a prima facie case" and that mere
temporal proximity is sufficient to demonstrate causality).
Conversely, however, it is well established that the greater
the time that elapses between the protected activity and the
alleged acts of retaliation, the more difficult it is to justify
an inference of causal connection between the two. See Saunders
v. DiMario, 1998 WL 525798 *4, *5 (D.D.C. 1998) (plaintiff
failed to establish causal nexus necessary for retaliation claim
where the allegedly retaliatory non-hiring occurred eight to ten
years after his filing of an EEO complaint); accord Dowe v.
Total Action Against Poverty, 145 F.3d
653, 657 (4th Cir. 1998) (a seven-month time lapse "negates any
inference that a causal connection exists between the filing of
the EEO complaint and plaintiff's termination"); Harris v.
Rector Bd. of Visitors of UVA, 1996 WL 199551, *2 (4th Cir.
1996) (distinct court properly dismissed retaliation claim where
complaints occurred thirty-five months prior to employee's
declined appointment of a new position); Clark v. Chrysler
Corp., 673 F.2d 921, 930 (7th Cir. 1982), cert. den.,
459 U.S. 873, 103 S.Ct. 161, 74 L.Ed.2d 134 (1982) (absent other evidence
of causation, a sufficiently great lapse of time warrants
judgment for the defendant as a matter of law on retaliation
While temporal proximity alone is not always dispositive on a
retaliation claim,*fn19 in this case the lapse of time between
the protected activity and the various allegedly discriminatory
events is well beyond the range where the D.C. Circuit and this
court have tended to find a prima facie case of causation. For
instance, this court has held that a lapse of even two years
between the filing of an EEO charge and the alleged retaliatory
action can negate an inference of retaliatory motive. See
Townsend v. Washington Metropolitan Area Transit Authority,
746 F. Supp. 178, 187 (D.D.C. 1990); see also Devera v. Adams,
874 F. Supp. 17, 21 (D.D.C. 1995) (eight-month lapse between
plaintiff's discrimination charge and employer's letter of
insubordination is not strongly suggestive of a causal link);
Dhuria v. Trustees of UDC, 827 F. Supp. 818 (D.D.C. 1993)
(granting judgment as matter of law to defendant on a retaliation
claim because of the time lapse between filing EEO complaint and
receiving poor classroom teaching evaluations). Moreover, in the
circumstances of this case, the plaintiff's attempt to make a
prima facie case of causation cannot be salvaged by his
allegation that the DOE's refusals to reclassify his position
were part of a continuing course of discriminatory conduct rather
than discrete events.
In light of these precedents, and in the absence of other
evidence sufficiently linking the temporally isolated events with
the 1979 protected activity,*fn20 the court finds
that, as a matter of law, the plaintiff has not satisfied the
causation element of a prima facie case of retaliation.
Accordingly, the court will grant the motion to dismiss the
plaintiff's retaliation claims.
D. DOE's Alleged Untimely Handling of 1997 EEO Complaint is
Not an "Adverse Employment Decision" under Title VII
The last allegation subject to the instant motion to dismiss is
Mr. Kilpatrick's allegation that DOE discriminated and retaliated
when it failed to issue a final agency decision on his 1997 EEO
complaint within 60 days of its filing date. See Compl. ¶ 16.
While the D.C. Circuit has not specified the exact contours of
what constitutes an adverse personnel action, it is clear that
the action complained of must have some "negative consequences
with respect to the plaintiff's employment." See Jolly v.
Listerman, 672 F.2d 935, 953 (D.C.Cir. 1982); Childers v.
Slater, 44 F. Supp.2d 8, 19 (D.D.C. 1999); Brown v. Bentsen,
921 F. Supp. 1, 2 (D.D.C. 1995); accord Norman v. Rubin, 1999 WL
739433, *4, 5 (4th Cir. 1999) (citation omitted); Dachman v.
Shalala, 46 F. Supp.2d 419 (D.Md. 1999) (systematic retaliation
in form of reduction of job duties, disciplinary action, negative
personnel reports and required remedial training constituted
adverse employment action as a matter of law). Under the
circumstances here, the agency's failure to issue a final
decision on the plaintiff's 1997 EEO complaint within 60 days had
no discernible "negative consequences" for his employment. See
Jolly, 672 F.2d at 953. In the absence of a timely final
decision by the agency, the plaintiff had the right to "file a
civil action in the appropriate district court after 180 days
from the date of filing and individual or class complaint if . .
. a final decision has not been issued." 29 C.F.R. § 1614.408(b).
Accordingly, the court concludes that the DOE's untimely
decision on Mr. Kilpatrick's 1997 EEO complaint does not
constitute an actionable adverse personnel action within the
meaning of Title VII. The court will thus dismiss the claim that
the allegedly dilatory handling of Mr. Kilpatrick's 1997 EEO
Complaint constituted racial discrimination and retaliation.
For the foregoing reasons, the court will grant in part and
deny in part the defendant's motion to dismiss portions of Count
II. Specifically, the court will dismiss ¶¶ 14(a-c) of Count II
to the extent that they allege retaliation. The court will deny
the motion to dismiss without prejudice, however, as to the
portion of Count II which alleges discrimination arising out of
the events described in the 1991 EEO complaint, because the
defendant withdrew its argument that that complaint was untimely
filed. Lastly, the court will dismiss the portion of Count II (¶
16) alleging that the DOE discriminated and retaliated by
untimely processing his 1997 EEO complaint.
An Order directing the parties in a fashion consistent with
this Memorandum Opinion was separately issued on March 31, 2000.
This Opinion is executed and issued this 27th day of April 2000.