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KILPATRICK v. RILEY

April 27, 2000

ROBERT PAUL KILPATRICK, PLAINTIFF,
V.
RICHARD W. RILEY, SECRETARY OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Urbina, District Judge.

MEMORANDUM OPINION

Granting in Part and Denying in Part the Defendant's Motion to Dismiss Portions of Count II

I. INTRODUCTION

This matter comes before the court on the defendant United States Department of Education ("DOE")'s motion to dismiss parts of Count II of the two-count complaint. In Count II, the plaintiff alleges that DOE racially discriminated and retaliated*fn1 against him on at least seven occasions from 1980 through 1996. Specifically, the plaintiff alleges that DOE failed to properly classify his position as a Grade 14, effectively preventing him from being "promoted," excluded him from meetings related to his duties in 1995, ordered his supervisor to lower his 1995 performance rating and passed him over for selection as Director of the Department's Equal Employment Group in November 1996.*fn2

DOE contends that the court should dismiss three portions of Count II for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). First, DOE seeks to dismiss that portion of Count II which arises from events covered in Mr. Kilpatrick's 1991 EEO complaint on the ground that he filed that complaint untimely and thus failed to exhaust his administrative remedies. See Compl. ¶ 14(a) & (b). Second, DOE seeks to dismiss the portion of Count II which alleges retaliation, on the ground that the plaintiff has not shown a causal connection between the 1979 protected activity and the allegedly retaliatory acts in 1990 through 1996. See id. ¶ 14(a) & (b). Third and last, DOE asks the court to dismiss the portion of Count II which alleges the DOE discriminated and retaliated by handling the plaintiff's 1996 EEO complaint in an untimely fashion, see Compl. ¶ 16, on the ground that improper processing of an employee grievance is not an actionable adverse employment action.*fn3 See Defendant's Motion to Dismiss Count II in Part ("Mot. to Dis.") at 2-3.

For reasons which follow, the court will grant in part and deny in part the motion to dismiss the aforementioned portions of count II. The Order issued on March 31, 2000 specifies which claims survive the court's partial grant of the motion to dismiss.

II. BACKGROUND

Robert P. Kilpatrick is an African-American man who is employed by the United States Department of Education ("DOE" or "the Department"). Since 1968 Mr. Kilpatrick has been employed by the DOE or its predecessor. See Compl. ¶ 3; Mot. to Dis. at 3. Mr. Kilpatrick's job responsibilities have been in the area of equal employment opportunity and employee discrimination complaints. See Compl. ¶¶ 3, 14(a) & (b); Mot. to Dis. at 3. In 1980, when DOE was created,*fn4 Mr. Kilpatrick was made Acting Chief of the Complaints Analysis and Conciliation Unit, a grade GS-13 position. Id. ¶ 14(a)(1).

In Count II, Mr. Kilpatrick alleges that DOE discriminated against him on the basis of race in violation of Title VII. Specifically, Mr. Kilpatrick alleges that DOE has maintained a position-classification system which has had the "continuing effect of denying him promotions since 1980." See Compl. ¶ 6. He also alleges that DOE retaliated for his preparation of a report which concluded that "blacks and other minorities [employed by the DOE] were being disproportionately downgraded in comparison to their white counterparts. As a direct result of [Mr. Kilpatrick's] report, all negative classifications were rescinded and no one was downgraded." See Compl. ¶ 14a(2).*fn5 Mr. Kilpatrick does not specify what he means by "negative classifications", nor does he identify the DOE employees or positions discussed in or allegedly affected by his report.

Mr. Kilpatrick does specifically allege that the DOE discriminated and retaliated against him on the following seven occasions:

(1) In May 1980, the DOE failed to properly classify his position as grade GS-14*fn6 and so failed to "promote" him to that level;
(2) On August 8, 1990, DOE issued a memorandum which declined a request to "re-grade" Mr. Kilpatrick's position;
(3) The DOE did reclassify Mr. Kilpatrick's position as a grade GS-14 on February 7, 1991 but then undertook a series of actions to prevent him from receiving the promotion: refusing to forward correspondence needed for him to secure the promotion and "re-auditing" his position while not doing so for a similarly situated non-black employee;
(4) In November 1996, DOE improperly failed to select Mr. Kilpatrick for the position of Director of the Department's Equal Opportunity Group;
(5) At unspecified times, apparently in 1995 and/or 1996, the DOE "excluded [Mr. Kilpatrick] from meetings and briefings involving his duties;"
(6) DOE ordered Mr. Kilpatrick's supervisor to lower his 1995 performance rating; and
(7) DOE failed to investigate Mr. Kilpatrick's 1996 EEO complaint for 4 years, ignored EEOC orders directing it to do so, and failed to issue a final agency decision within 60 days of his complaint as required by regulations.

Id. ¶¶ 14a, 14b, 14c & 16.

The 1991 EEO Complaint. On September 10, 1990, Mr. Kilpatrick contacted an EEO counselor in connection with the August 8, 1990 memorandum in which DOE declined to re-grade his position. See Mot. to Dis., Ex. 1 at ¶ 7 and Ex. 2 at 1. Following the EEO counseling period, Mr. Kilpatrick filed EEO complaint # ED-912001 with the DOE on April 19, 1991 ("the 1991 EEO complaint"). See Compl. ¶ 6. The 1991 EEO complaint charged that the DOE had employed a position-classification system which wrongfully denied Mr. Kilpatrick promotions since 1980. See Compl. ¶ 14.

The 1997 EEO Complaint and Purported Settlement. In 1996, the DOE hired someone other than Mr. Kilpatrick as Director of the EEO Group. In December 1996, Mr. Kilpatrick sought EEO counseling as a precursor to filing an EEO complaint alleging that his nonselection constituted racial discrimination and retaliation. See Compl. ¶ 6. In April 1997, Mr. Kilpatrick alleges, he and the DOE reached a settlement agreement resolving the issues from both the 1991 EEO complaint and the 1996-1997 EEO counseling. See id. The DOE declined to sign the settlement, however, because he refused to accept a proposed amendment by DOE which would have paid him less interest than would otherwise be due under statute. See id. at ¶¶ 9-12.

Mr. Kilpatrick, however, felt that the DOE breached the settlement. Mr. Kilpatrick took two actions in response to the DOE's alleged breach of the settlement: (1) in September 1997, he filed charge # 97-033-IDR with the EEOC with regard to his 1996 non-selection ("the 1997 EEO complaint"); and (2) in 1998, he appealed to the EEOC on his allegation of breach. ...


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