Thus, the burden is on the defendant to prove that
administrative remedies were not exhausted. Bowden v. United
States, 106 F.3d 433, 437-438 (D.C.Cir. 1997); Brown v.
Marsh, 777 F.2d 8, 13 (D.C.Cir. 1985). If the defendant meets
its burden, the plaintiff then bears the burden of pleading and
proving facts supporting equitable avoidance of the defense.
Bowden, 106 F.3d at 437-38; cf. 29 C.F.R. § 1613.214(a)(4)
(1991) (recodified as amended at 29 C.F.R. § 1614.204(c)).
Importantly, the exhaustion requirement is subject to the
doctrines of waiver, estoppel, and equitable tolling. Zipes,
455 U.S. at 385, 102 S.Ct. 1127; Mondy v. Sec'y of the Army,
845 F.2d 1051, 1055 (D.C.Cir. 1988); M.K. v. Tenet,
99 F. Supp.2d 12,25 (D.C. 2000).
Defendant has not met its burden of proving that plaintiff
failed to exhaust his administrative remedies. Plaintiff first
filed an EEO complaint related to this case in March of 1996.
The events of which he complains in this case that occurred
prior to January 1996,*fn2 and through the entirety of his
employment with DEA, are part of a continuing violation that
plaintiff has alleged amounts to racial and disability
discrimination, failure to reasonably accommodate his
disability, and creation of a hostile work environment. Events
that occur prior to the 45 day time-frame may be included in a
Title VII claim under a continuing violation theory if they
constitute "an ongoing series of related discriminatory acts
directed against an employee . . . If at least one of the acts
complained of falls within the limitations period, a complaint
filed at any time within this period is timely filed with
respect to all acts which are part of the continuing violation."
Fisher v. Sullivan, EEOC Appeal No. 01893987, 1990 WL 1113435
(E.E.O.C. January 18, 1990) (citations omitted); see also
Sabree v. United Brotherhood of Carpenters and Joiners Local No.
33, 921 F.2d 396, 400 (1st Cir. 1990); Scott v. Claytor,
469 F. Supp. 22, 25 (D.C. 1978).
This Court is of the opinion, that if events occurred as
plaintiff has alleged, then plaintiff was arguably subject to an
ongoing series of discriminatory acts at the hands of the same
few supervisors, beginning in 1995 and continuing until he
resigned from DEA in 1999. Plaintiff made five formal complaints
to DEA regarding this ongoing series of events from 1996 through
1998. The events of which plaintiff complained in the May 7,
1998, EEO complaint are simply a continuation of the events
about which plaintiff had complained in the past. Those five
complaints, which DEA never resolved, are sufficient to exhaust
plaintiffs administrative remedies.*fn3
III. Race and Disability Discrimination Claims
A. Plaintiff's Prima Facie Case
As this court held in denying defendant's motion to dismiss,
plaintiff has sufficiently alleged a prima facie case of
discrimination based on race and disability. Once again,
defendant argues that plaintiffs claim fails because he has not
proven that he suffered any adverse employment actions. Def.'s
Brief at 20.
In order to establish a prima facie case of discrimination
under Title VII, a plaintiff must "establish that (1) she is a
member of a protected class; (2) she suffered an adverse
employment action; and
(3) the unfavorable action gives rise to an inference of
discrimination." Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.
1999) (citing McDonnell Douglas v. Green, 411 U.S. 792, 802,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Here, as the Court
previously held, the plaintiff satisfies the first requirement.
See Mem. Op. and Order (March 3, 1999).
In Russell v. Principi, the D.C. Circuit clarified the
standard for adverse employment action required for a Title VII
prima facie case. 257 F.3d 815 (D.C.Cir. 2001). In that case the
Circuit held that the denial of a bonus can constitute an
adverse employment action. 257 F.3d at 817. The determination of
whether or not a plaintiff has suffered a sufficiently adverse
employment is a fact-based question, and turns on whether the
action "`affect[s] the terms, conditions, or privileges of [an
employee's] employment or future employment opportunities such
that a reasonable trier of fact could conclude that the
plaintiff has suffered objectively tangible harm.'" 257 F.3d at
818-19 (quoting Brown, 199 F.3d at 457).
Plaintiff alleges that his reassignment from Technical
Operations to the Administrative Section and the resulting
change in the terms and conditions of employment, lowered
performance evaluations, leave restrictions, repeated assignment
of AWOL status, and unpaid leave for one year are sufficiently
adverse actions to satisfy the prima facie requirement. After
Russell, this Court should not hold as a matter of law that
those types of actions are per se not adverse employment
actions. Whether or not the allegedly discriminatory actions
taken by DEA against plaintiff, were sufficiently adverse is a
question for a "reasonable trier of fact" to "objectively"
determine. 257 F.3d at 818, Because the parties dispute the
impact and importance of these DEA actions, summary judgment is
inappropriate as to plaintiff's race and disability
B. Defendant's Legitimate Non-Discriminatory
Furthermore, while defendant has offered legitimate
non-discriminatory justifications for the actions taken by DEA
with respect to plaintiff, plaintiff has offered evidence that
raises issues of material fact with respect to those
justifications. For example, whether or not the decisions by AO
Jenkins and GS Gamble to impose leave restrictions on plaintiff
were motivated by discriminatory intent based on plaintiff's
race and/or disability is a matter for a jury to decide.
Plaintiff has offered evidence that his supervisors were hostile
to his disabled status, and that evidence is sufficient to raise
a question of material fact with respect to the motivation of
those supervisors in making decisions that affected plaintiffs
employment. As this Court's recitation of the facts in this case
makes clear, the parties dispute the reason for almost every
action taken by DEA with respect to plaintiffs employment; the
Court will not repeat all those factual disputes here.