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April 30, 2001


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




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 dismiss.

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 Civil Procedure.


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. at 3.

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. See id.

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, 2000, ...

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