The opinion of the court was delivered by: Urbina, District Judge.
DENYING THE DEFENDANT'S MOTION TO DISMISS;
GRANTING THE PLAINTIFF LEAVE TO AMEND HIS COMPLAINT
This case comes before the court on the defendant's motion to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). The defendant alternatively moves for summary
judgment pursuant to Federal Rule of Civil Procedure
The plaintiff, Sampath Krishnan ("the plaintiff" or "Mr.
Krishnan"), brings this suit for damages, back pay, and a
retroactive promotion under Title VII of the Civil Rights Act of
1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., and
the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. § 621 et seq. Specifically, the plaintiff alleges that the
Department of Transportation ("the defendant" or "DOT")
discriminated against him on the basis of his race, age, and
national origin by not promoting him in 1997 to a GS-15 position
in the Federal Aviation Administration ("FAA"), a DOT
The defendant asserts that the plaintiff has failed to exhaust
his administrative remedies, and thus that the court lacks
subject-matter jurisdiction to hear this case. See
FED.R.CIV.P. 12(b)(1). Moreover, the defendant claims that the
complaint has not made out a prima-facie case of discrimination.
Thus, the defendant also moves for dismissal under Federal Rule
of Civil Procedure 12(b)(6). For the reasons listed in Section
III below, the court will deny the defendant's motion to
In addition, the court notes that when the plaintiff filed his
complaint in federal court on May 8, 2000, he was proceeding
pro se.*fn2 Perhaps understandably, then, the plaintiff
does not clearly plead his various causes of action. For
example, the complaint's "Statement of Claim" section alleges
only in very general terms that the plaintiff has suffered
discrimination. See Compl. at 7-8. In addition, while the text
of the complaint seems to plead several counts — i.e., (1) the
1997 discriminatory refusal to promote based on race, national
origin, and age, (2) a hostile work environment, and (3) a
continuing violation — the "Prayer for Relief" section covers
only the allegedly discriminatory refusal to promote in 1997.
See id. at 8-9. Accordingly, this Memorandum Opinion will
address only the 1997 count, and the court's ruling will apply
only to the 1997 count.
The court, however, will give the plaintiff an opportunity to
clarify the parameters of his action, if he so chooses, by
adding any other possible counts besides the 1997
failure-to-promote claim. Thus, the court sua sponte will
grant the plaintiff leave to amend his complaint by the date
specified in the accompanying Order. The defendant, of course,
will have an opportunity to respond to any amended complaint
according to the timetable prescribed by the Federal Rules of
The plaintiff, Sampath Krishnan, is a 57-year-old Asian male
who was born in Madras, India on June 7, 1943. See Compl. at
2, 6; Pl.'s Opp'n at 2. A citizen of the United States, Mr.
Krishnan works in the FAA's National Airspace System ("NAS")
operations program ("AOP") as a GS-14 Transportation Management
Specialist/Program Manager. See Pl.'s Opp'n at 2-3. He has
held his current position for more than eight years. See id.
The current dispute revolves around two promotions Mr.
Krishnan sought in 1997 but did not receive. During the time
period in question, the FAA advertised two GS-15 level Program
Manager positions in vacancy announcements AWA-AOP-97
10013-15182 ("AOP 400") and 10128-15242 ("AOP 500"). See
Compl. at 6. On May 16, 1997, the defendant appointed Jay Rupp,
then a 32-year-old white male, to the AOP 400 position. See
Pl.'s Opp'n at 8. On the same day, the defendant appointed Jeff
Yarnell, then a 39-year-old white male, to the AOP 500 position.
On May 19, 1997, John Zalenchak, a member of the defendant's
interviewing panel and selection panel, e-mailed all the
candidates regarding the selections for the promotions. Mr.
Krishnan, however, claims that he did not receive this
correspondence, and was not aware of the promotions until a
co-worker informed him of the selections on June 6, 1997. See
id. In his affidavit, Mr. Krishnan says, "I was on official
business travel from May 19, 1997 through May 23, 1997. . . . I
did not return to the office until Tuesday, May 27, 1997 because
of the Memorial Day holiday." See Pl.'s Opp'n, Ex. 1.
On July 8, 1997, the plaintiff contacted an Equal Employment
Officer ("EEO") to seek counseling and to discuss his belief
that his non-selection to AOP 400 and AOP 500 was based on
discriminatory animus. See Compl., Ex. 1. After EEO counseling
failed to resolve the problem, the plaintiff filed a formal
administrative complaint with the Equal Employment Opportunity
Commission ("EEOC") on November 7, 1997. See Pl.'s Opp'n at 9.
After an agency investigation, Mr. Krishnan requested a hearing
before an administrative law judge. See id. On February 2,