The opinion of the court was delivered by: Urbina, District Judge.
DENYING THE DEFENDANT'S MOTION TO DISMISS; DENYING WITHOUT
PREJUDICE THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
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
William Sanders, an African-American man, works as a GS-13
Criminal Investigator in the Office of Inspector General
("OIG"), a division of the U.S. Department of Agriculture
("USDA"). See Compl. ¶ 5. Between November 1995 and March 1996,
Mr. Sanders applied for four GS-14 Criminal Investigator
vacancies within the OIG. He made the "best qualified" list for
each promotion but did not receive any of them. See Mot. to
Dis. at 2. Instead, the defendant chose two white men, one
African-American man, and one Hispanic man. See id. The
defendant announced the selection of one of the white men and the
African-American man on January 16, 1996, and announced the other
two selections on March 25, 1996. See id.
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.