The opinion of the court was delivered by: Robertson, District Judge.
Before the court is a defense motion [# 22] to dismiss some but not all
counts of a multi-count employment discrimination complaint. The motion
is granted in part: Count 1, charging discriminatory failures to
promote, is untimely; Count 6, charging retaliatory removal, was waived;
and because the plaintiff failed to exhaust her administrative remedies,
the court lacks jurisdiction over Count 9, charging unlawful seizure of
wages, and those parts of Count 2 that charge seizure of wages and work
product disparagement. The motion to dismiss Count 8, which charges
discriminatory assignment to training opportunities, is denied. The
reasons for this order are set forth below.
Count 1 (Discriminatory Failures to Promote)
Count 1, charging discriminatory failures to promote, purports to cover
the period November 1, 1995 to September 10, 1999, but its specific
allegation is that non-African American co-workers (with no more
experience or education than plaintiff had) received two grade increases
between November 1995 and July 1997, while plaintiff received none.
A timely administrative charge is a prerequisite to initiation of a
Title VII action. Jarrell v. United States Postal Service, 753 F.2d 1088,
1091 (D.C.Cir. 1985). Pursuant to 29 C.F.R. § 1614.105 (a)(1), a
person complaining of racial discrimination must consult an Equal
Employment Opportunity (EEO) counselor within 45 days of the date of the
matter alleged to be discriminatory. Ms. Williams acknowledges that she
did not contact an EBO Counselor until December 5, 1997, over four months
after the date on which the allegedly discriminatory promotions were
given to others, but she argues that her contact was not untimely because
defendant's violation of the law was continuing.
A plaintiff seeking to establish a continuing violation must show "[i]
a series of related acts, one or more of which falls within the
limitations period, or [ii] the maintenance of a discriminatory system
both before and during the limitations period." McKenzie v. Sawyer,
684 F.2d 62, 72 (D.C.Cir. 1982). Plaintiff has not made an allegation
that would fit the second prong, and has indeed effectively admitted the
absence of any "system" for promotions.*fn1 Her argument instead invokes
the first prong: she asserts that each paycheck she received was one of a
series of related acts, each one an additional violation, because each
was for less than she would have been paid had she been promoted. This
argument relies on Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92
L.Ed.2d 315 (1986). Bazemore did hold that "[e]ach week's paycheck that
delivers less to a black than to a similarly situated white is a wrong
actionable under Title VII," but the Court limited that holding to the
facts before it, which were quite different from the facts of this case.
Id. at 395-396, 106 S.Ct. 3000. The Supreme Court has also stated that it
is insufficient to allege that an action "gives present effect to the
past illegal act and therefore perpetuates the consequences of forbidden
discrimination," Delaware State College v. Ricks, 449 U.S. 250, 258, 101
S.Ct. 498, 66 L.Ed.2d 431 (1980), and the D.C. Circuit has noted that
"[t]he critical question is not whether past practices have current
consequences, but whether any present violation exists . . . for which
the plaintiff has made a timely administrative charge." Valentino v.
United States Postal Service, 674 F.2d 56, 65 (D.C.Cir. 1982). Here, the
alleged discriminatory act is failure to promote. If the amount of Ms.
Williams' paychecks was too little each month, it was in consequence of
the failure to promote, not an individual violation. As she has alleged
no acts occurring within the statutory period, Ms. Williams has not
established a continuing violation.
Nor is this an appropriate case for equitable toiling under
29 C.F.R. § 1614.105 (a)(2). The D.C. Circuit has allowed equitable
tolling where the plaintiff failed to contact an EEO counselor in
reliance on the advice of a government official, Jarrell v. USPS,
753 F.2d 1088, 1092 (D.C.Cir. 1985); where defendant tricked plaintiff
into allowing the filing deadline to pass, Washington v. WMATA,
160 F.3d 750, 752 (D.C.Cir. 1998); where the defendant engaged in
affirmative misconduct, id.; or where the claimant has filed a timely
pleading later found to be defective, Id. Plaintiff does not allege any of
these situations. Instead, she asserts that she only later became aware
of the reasons for her non-promotion. That theory was rejected in Cones
v. Shalala, 945 F. Supp. 342, 347 (D.D.C. 1996) (rev'd on other grounds,
199 F.3d 512 (D.C.Cir. 2000)), and will be rejected here as well. Ms.
Williams knew that she had not been promoted and that her non-African
American co-workers had been promoted. She reasonably should have
suspected that there might be discriminatory reasons, and should have
investigated. This is not a sufficiently "extraordinary" case to warrant
Count 6 (Retaliatory Removal)
After her removal from federal service on June 25, 1999, Ms. Williams
was advised that her options were to file an internal grievance or to
file a complaint with the Merit Systems Protection Board (MSPB).*fn2 She
elected to file with the MSPB, alleging that she had been removed in
retaliation for making certain disclosures protected by the Whistleblower
Protection Act (WPA). In her MSPB appeal, she also claimed that her
removal was in retaliation for her EEO activities. She then withdrew the
claim of retaliation for her EEO activities, allegedly at the suggestion
and encouragement of the MSPB administrative judge. When she later
attempted to assert that claim before the agency EEO office, it was
dismissed because her claim of retaliation for whistleblower activities
was pending before the MSPB.
A mixed-case complaint may be filed with an agency EEO department or
with the MSPB, but not in both places at once. See 5 U.S.C. § 7702;
29 C.F.R. § 1614.302 (b). A plaintiff is required to exhaust her
claims in the forum she has chosen before filing a civil action. See
McAdams v. Reno, 64 F.3d 1137, 1142 (8th Cir. 1995) (quoting Tolbert v.
916 F.2d 245, 248 (5th Cir. 1990)); see also Brown v. General Servs.
Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Ms.
Williams concedes that she did not exhaust her administrative remedies
for her claim of retaliation for her EEO activities. She asserts,
however, that the exhaustion requirement should be waived for two
Her first argument is that if she had received notice of her right to
appeal to the EEO office she would have taken that route. Defendant was
not required to inform her of her right to appeal to the EEO office,
however, because she had not by that time. 29 C.F.R. § 1614.302 (b).
Plaintiff's second argument is that she should not be penalized for
relying on the erroneous advice of the administrative judge that she
could bring her EEO claim separately. This estoppel argument fails. Even
if Ms. Williams' version of events is credited fully,*fn3 she was
represented by counsel at the time, a fact that seriously weakens her
reliance claim. McAdams, the only case plaintiff cites in support of this
argument, found that misinformation alone is not enough to support a
waiver of the exhaustion requirement. 64 F.3d at 1143. Plaintiff cites no
authority for the proposition that OPIC should be bound by the statement
of the MSPB administrative judge.
Count 8 (Racial Discrimination in Professional Training)
Ms. Williams' claim of discrimination in the denial of her request for
professional training is pleaded without great detail, and may be in
considerable jeopardy if it is later made to appear, on undisputed
facts, that the alleged denial of training had no "materially adverse
consequences affecting . . . her future employment opportunities" and was
therefore not "adverse action." See Brown v. Brody, 199 F.3d 446, 456
(D.C.Cir. 1999). At this stage, however, the claim is not subject to
dismissal. "[A] plaintiff need not set forth the elements of a ...