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February 22, 2001


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




This matter comes before the court on the defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). The defendant alternatively moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. The plaintiff, William Sanders ("the plaintiff" or "Mr. Sanders"), brings this suit for damages under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The plaintiff claims that his employer, the U.S. Department of Agriculture, discriminated against him on the basis of his race and retaliated against him after he complained of unlawful discrimination. Specifically, the plaintiff alleges that his employer denied him promotions and reassigned him to a regional office, negatively affecting his career opportunities. See Compl. ¶¶ 6-8. The defendant, Ann Veneman, is the Secretary of Agriculture ("the defendant"), named in her official capacity.

The defendant moves to dismiss this action under Rule 12(b)(1) on the ground that the court lacks subject-matter jurisdiction because the plaintiff failed to timely exhaust his administrative remedies. See Mot. to Dis. at 1. The plaintiff counters that he sought EEO counseling two days after realizing that his employer had been discriminating against him. See Pl.'s Opp'n to Mot. to Dis. ("Pl.'s Opp'n") at 15. The defendant also moves to dismiss this action under Rule 12(b)(6) on the ground that a lateral transfer is not an adverse personnel action within the meaning of Title VII. See Mot. to Dis. at 1.

For the reasons that follow, the court holds that because the plaintiff contacted an EEO counselor within 45 days of his involuntary transfer, he has timely exhausted his administrative remedies. The court holds that the involuntary transfer and the surrounding circumstances in this case may constitute an adverse personnel action within the meaning of Title VII. Moreover, the court finds the plaintiff has established prima-facie cases of discrimination and retaliation.

Accordingly, the court will deny the defendant's motion to dismiss.


On May 26, 1996, the defendant notified Mr. Sanders that he would be reassigned from the Washington, D.C. office to another GS-13 Criminal Investigator position in Riverdale, Maryland. Mr. Sanders viewed this involuntary transfer to an office outside of headquarters as a negative career move that would decrease his chances of receiving a promotion. See Compl. ¶ 8. Moreover, he claims that he "also suffered financial harm as a result of the transfer in that his per diem pay was significantly reduced, which noticeably diminished his salary." Pl.'s Opp'n at 4-5. Accordingly, on May 28, 1996, two days after he learned of his transfer, Mr. Sanders contacted an EEO counselor. See Pl.'s Opp'n at 5.

Mr. Sanders asserts that Craig Beauchamp, the Assistant Inspector General, was both the selecting official for the four promotions and the official who authorized Mr. Sanders's transfer to the regional office. See Pl.'s Opp'n at 3-4. Mr. Sanders claims Mr. Beauchamp was aware of his involvement in a "coalition to address problems that confronted African-Americans" within the OIG. See id. at 3. While Mr. Sanders was pursuing a promotion, Mr. Beauchamp allegedly assured him he would be promoted to a GS-14 position in the Washington office when the position became vacant. See id. at 3-4. Mr. Sanders claims that this assurance prevented him from recognizing a pattern of discrimination in the promotion decisions. He realized he was being discriminated against only when he received notice of his reassignment on May 26, 1996. See id.

The defendant counters that the promotions were neither discriminatory nor retaliatory, and notes that an African-American man was chosen for one of the positions. See Def.'s Reply to Pl.'s Opp'n ("Reply") at 9. In addition, the defendant argues that any alleged conversations with Mr. Beauchamp "would simply not rise to the level of `misrepresentations' by the agency." See id. at 5. The defendant contends that Mr. Sanders suffered no diminution in salary or benefits as a result of his transfer. In addition, the defendant states that a decrease in per diem expense pay does not qualify as a legitimate salary diminution. See id. at 10-11. Moreover, the defendant asserts that each of the GS-14 selectees had worked in a regional or field office before their promotions, thus belying Mr. Sanders's claim that his transfer negatively affected his chances for promotion. See id. Finally, because the possibility of relocation was one of the conditions of Mr. Sanders's position, the defendant argues that Mr. Sanders cannot consider his reassignment involuntary. See Mot. to Dis. at 2-3.

Mr. Sanders visited an EEO counselor for the first time on May 18, 1996. See Mot. to Dis. at 3; Pl.'s Opp'n at 5. On July 20, 1999, the EEOC issued a decision finding that Mr. Sanders had satisfied the necessary procedural requirements for an administrative hearing. See Pl.'s Opp'n at 6. The EEOC issued its Final Agency Decision on March 17, 2000, holding that Mr. Sanders had satisfied all of the procedural prerequisites for a hearing. See id. at 6. The EEOC also determined that Mr. Sanders's transfer and non-selections for the promotion were based on legitimate, non-discriminatory reasons. See Mot. to Dis. at 3.

The USDA adopted and incorporated the EEOC's decision on March 17, 2000. See Pl.'s Opp'n at 6. Mr. Sanders brought suit in this court on June 15, 2000, within 90 days of the EEOC's final decision, as required by 42 U.S.C. § 2000e-16(c) and 29 C.F.R. § 1614.408. The defendant now moves to dismiss. For ...

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