The opinion of the court was delivered by: Urbina, District Judge.
Granting in Part and Denying in Part the Defendant's Motion to
Dismiss Portions of Count II
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
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
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rescinded and no one was downgraded."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
(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
(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
(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. ...