the plaintiff alleges that the NLRB violated Title VII of the Civil
Rights Act of 1964 ("Title VII"), as amended 42 U.S.C. § 2000e et
seq., by discriminating against him on the basis of his race and
protected activities by failing to promote him to a senior space
management position. Count II sets forth allegations that the defendant
violated the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. § 621 et seq., by refusing to promote the plaintiff because
of his age. In Count III, the plaintiff claims that the defendant refused
to promote him in retaliation for his prior EEO activities. Lastly, in
Count IV, the plaintiff charges that he has suffered intentional
infliction of emotional distress as a result of the alleged
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.
Mr. Lockamy's former space management position remained unfilled until
May 1996 when Norman King ("Mr. King"), a white male under the age of
40, was detailed to the NLRB from the Department of the Interior
("DOI"). See id. Mr. King
had operated at the GS-12 level at the DOI. See
id. On September 13, 1996, Mr. Lockamy saw a vacancy announcement for a
space management specialist position at the GS-12 level. See id. at 6-7.
The plaintiff claims that this position was "virtually identical" to his
GS-9 space management position. See id. The defendant counters that the
description for the GS-12 position contained substantially more job
responsibility and was created to deal with substantive programmatic and
procedural changes within the agency. See Mot. for Summ. J. at 3.
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
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
2. The Plaintiff Has Exhausted His Administrative Remedies in a Timely
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.,