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October 15, 2001


The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.



On July 9, 2001, the defendant filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). The defendant argues that Mr. Lockamy has failed to exhaust all his administrative remedies and has failed to establish a prima-facie case of discrimination for failure to promote under Title VII and the ADEA. While the court concludes that the plaintiff has exhausted his administrative remedies, he has failed to make prima-facie cases of discrimination under Title VII and the ADEA. The court also determines that the plaintiff has failed to set forth prima-facie cases of retaliation for his prior Equal Employment Opportunity ("EEO") activities and intentional infliction of emotional distress. Accordingly, the court will grant the defendant's motion for summary judgment on all four counts.


Enoch Lockamy, an African-American male in his mid-50s, began his career at the NLRB as a Motor Vehicle Operator in 1975. See Compl. at 3. The NLRB hired him as a space management specialist in its procurement and facilities branch at the GS-7 level in October 1988. See id. at 3-4. By 1989, Mr. Lockamy was performing the same position at the GS-9 level. See id. at 4. In the early 1990s, Mr. Lockamy claims he was the victim of repeated discriminatory behavior by his supervisor, Tony Hardin ("Mr. Hardin"). See id. at 4-6. Specifically, Mr. Lockamy claims that Mr. Hardin is a "racist," that he cursed at the plaintiff, accused him of abusing his leave time to care for his ailing father, and insulted the plaintiff in a racially hostile manner on multiple occasions. See id. at 4-5. Mr. Lockamy also claims that Mr. Hardin sabotaged and unfairly scrutinized his work, that he told the plaintiff that he could not address white employees by their first names, and that the plaintiff could not use a typewriter that other procurement-branch employees could use. See id. at 5.

In July 1993, Mr. Lockamy filed an informal complaint of discrimination against Mr. Hardin because of his alleged discriminatory behavior, which Mr. Lockamy later withdrew. See id. at 5; Def.'s Mot. to Dismiss and for Summ. J. ("Mot. for Summ. J.") at 2. In April 1994, Mr. Lockamy requested a promotion to a GS-11 position. See Compl. at 5. Mr. Hardin denied this request. See id. In July 1995, Mr. Lockamy left his GS-9 level space management position at the NLRB and took a GS-9 telecommunications specialist position "to escape the racist behavior of Mr. Hardin." See Compl. at 6. While Mr. Hardin remained his overall supervisor, Mr. Lockamy reported directly to an African-American male in this new position. See id.

On September 16, 1996, Mr. Lockamy contacted an EEO counselor regarding the GS-12 position and subsequently wrote to Mr. James Sunderlin, the branch chief, requesting that Mr. Sunderlin explain why the space management position was posted at the GS-12 level, and telling Mr. Sunderlin that such a classification "systematically excluded him." See Pl.'s Opp'n to Mot. for Summ. J. ("Pl.'s Opp'n") at 3. The defendant maintains that the position was classified at the GS-12 level because "officials within the agency believed that the position required journeyman level technical expertise, the ability to work independently, make independent judgments, and recommend and influence agency space policy." See Mot. for Summ. J. at 12. The NLRB selected Mr. King for the GS-12 position on September 30, 1996. See Compl. at 7. Mr. Lockamy says that he became aware of his selection on October 25, 1996. See Pl.'s Opp'n at 3. After meeting with an EEO Counselor on September 20, 1996 and November 14, 1996, the plaintiff filed his formal EEO complaint on November 22, 1996. See id.; EEO Counselor's Report ("EEO Report") ¶¶ 5, 6, 9. On November 8, 1999, the Equal Employment Opportunity Commission ("EEOC") issued a letter giving Mr. Lockamy the right to sue. See Compl. at 3. Mr. Lockamy filed this case on February 9, 2000. The defendant now moves to dismiss and for summary judgment.*fn1


A. The Defendant's Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6)

1. Legal Standard for Motion to Dismiss

On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdiction. See District of Columbia Retirement Bd. v. United States, 657 F. Supp. 428, 431 (D.D.C. 1987). In evaluating whether subject-matter jurisdiction exists, the court must accept all the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiff's favor. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overturned on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The court is not required, however, to accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations. See, e.g., Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).

Moreover, the court need not limit itself to the allegations of the complaint. See Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds by 482 U.S. 64 (1987). Rather, the court may consider such materials outside the pleadings as it deems appropriate to determine whether it has jurisdiction in the case. See Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

For a complaint to survive a Rule 12(b)(6) motion to dismiss, it need only provide a short and plain statement of the claim and the grounds on which it rests. See FED. R. CIV. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957). A motion to dismiss under Rule 12(b)(6) tests not whether the plaintiff will prevail on the merits, but instead whether the plaintiff has properly stated a claim. See FED. R. CIV. P. 12(b)(6); Scheuer, 416 U.S. at 236. In addition, the plaintiff need not plead the elements of a prima-facie case in the complaint. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000). Thus, the court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Atchinson v. District of Columbia, 73 F.3d 418, 422 (D.C. Cir. 1996). Moreover, the court should draw all reasonable inferences in the nonmovant's favor. See Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 7 (D.D.C. 1995).

2. The Plaintiff Has Exhausted His Administrative Remedies in a Timely Manner

As a threshold matter, the defendant claims that the plaintiff has not complied with the EEOC regulations regarding counseling deadlines. Before filing a discrimination suit in federal court, a Title VII plaintiff must exhaust his administrative remedies. See Brown v. General Serv. Admin., 425 U.S. 820 (1976). The Code of Federal Regulations ("CFR") states that individuals wishing to bring suit on the basis of race, color, religion, sex, national origin, age, or handicap must first attempt to resolve the matter informally with an EEO counselor, and that the initial contact with the counselor must take place within 45 days of the defendant's allegedly discriminatory action. See 29 C.F.R. § 1614.105(a). The C.F.R. also provides that the 45-day limitations period is triggered when a "complainant should reasonably suspect discrimination, but before all the facts that would support a charge of discrimination have become apparent." 29 C.F.R. § 1614.105(b).

In this case, the plaintiff first sought EEO counseling on September 16, 1996, three days after the defendant posted the vacancy announcement for the GS-12 space management position. See Mot. for Summ. J. at 7-8. After meeting with an EEO Counselor on September 20, 1996 and November 14, 1996, the plaintiff filed his formal EEO complaint on November 22, 1996. See EEO Report ¶¶ 5, 6, 9. The defendant asserts that since the plaintiff's complaint contains allegations going back to 1991 through 1995, and not merely the September 13, 1996 vacancy announcement posting of a GS-12 space management position, the plaintiff was untimely in exhausting his administrative remedies. See Mot. for Summ. J. at 8. For example, the defendant suggests that since the plaintiff viewed his supervisor's failure to increase his GS-9 space management position to a GS-11 level in April 1994, he should have filed an EEO complaint at that time. See Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. to Dismiss and for Summ. J. ("Reply") at 7-8.

While the plaintiff claims that he suffered ongoing discrimination by his supervisor, Mr. Hardin, the plaintiff bases his complaint on the facts that the defendant created a GS-12 space management position and selected a younger white male for the position. As such, given that the plaintiff made initial contact with an EEO official well within the 45-day limitations period, the court holds that the plaintiff properly exhausted his administrative remedies. Therefore, the court ...

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