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PLEASANTS v. ALLBAUGH
January 31, 2002
CARL PLEASANTS, PLAINTIFF,
JOE ALLBAUGH, DIRECTOR, FEDERAL EMERGENCY MANAGEMENT AGENCY, DEFENDANT.
The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge.
This matter was referred to me by Judge Kessler for all purposes. I
herein resolve Defendant's Motion to Dismiss or, in the Alternative, for
Summary Judgment*fn1 ("Def. Mot.") based on whether plaintiff's failure
to consult with an EEOC counselor within 45 days of his superior's
refusal to upgrade his position bars him from relief on that claim.
Plaintiff is an African-American male who began working at the Federal
Emergency Management Agency ("FEMA") in August 1992, when he was selected
to fill the GS-13 position of Program Specialist in the Operation
Services Branch, Program Services Division. In this position, plaintiff
was responsible for managing FEMA's nationwide space needs, including
acquisitions, utilizations, disposals, and maintenance. Plaintiff held
this position until he retired on January 31, 1999.
Plaintiff claims to have originally shared the space management
workload with four other employees. However, each of these co-workers
eventually left the agency and was not replaced, due in part to the
reorganization and downsizing of FEMA in accordance with then-Vice
President Gore's National Performance Review. Thus, plaintiff alleges
that he had no staff assistance during most of the time he was with
Plaintiff was appointed in October 1995 to Acting Chief in the
Operations Services Branch. This was a temporary position and plaintiff
continued to perform his space management duties. Plaintiff claims that
although another employee, Pauline Drury, had been upgraded to a GS-14
when she held the same Acting Branch Chief position, plaintiff remained a
GS-13 and received no additional compensation.
In May, 1996, Reginald Trujillo ("Trujillo") became Director of the
Program Services Division, and thus plaintiff's second-line supervisor.
In an attempt to achieve an upgrade to a GS-14, plaintiff stepped down
from the Acting Branch Chief position in March, 1997, at Trujillo's
suggestion. Trujillo had allegedly informed plaintiff that an upgrade of
his Program Specialist position by the personnel department would be more
likely once plaintiff had stepped down from the Acting Branch Chief
position. Plaintiff claims to have been deceived by Trujillo in this
regard, stating that Trujillo never submitted the request for an upgrade
to the personnel department.
Throughout his tenure at FEMA, plaintiff claims that he regularly
received superior performance appraisals while serving as Program
Specialist. See Plaintiff's Opposition to Defendant's Motion to Dismiss
("Pl. Opp.") at 4-5. Trujillo indicated in a memorandum on budget issues
that plaintiff's position was an integral function of the Agency and that
the plaintiff was performing the work of 10 people. Id. at 5-6.
Plaintiff claims that he made numerous requests to Trujillo to
reclassify or upgrade his position to a GS-14, but was repeatedly
rebuffed. The last of these requests is alleged to have been made in
December 1998. In January 1999, plaintiff accepted the Agency's offer of
an early-out retirement, which became effective on January 31, 1999.
Plaintiff claims that a significant factor in his decision was FEMA's
repeated refusals to upgrade his position.
Within seven months of plaintiff's retirement, Akers and Trujillo
expanded the Program Specialist position to include wider technical and
financial responsibilities, and upgraded it to a career ladder GS-13/14
level. This new position allegedly incorporated many of the changes
plaintiff had been seeking during his employment with FEMA. Plaintiff
learned of the new position and applied on July 27, 1999, but failed to
make the best-qualified list as determined by a rating panel and
therefore was never interviewed. Akers and Trujillo interviewed six
applicants and eventually selected Kim Roque, an Asian-American woman, for
the position. Plaintiff learned of his non-selection via telephone on or
about October 1, 1999, and contacted an EEOC counselor on October 28,
1999. Pl. Opp. at 7. Plaintiff then filed a formal complaint of
discrimination with the EEOC on December 6, 1999.
Adverse Employment Action
Defendant contends that plaintiff should have consulted an EEOC
counselor no later than 45 days after his retirement on January 31,
1999, in order to preserve for adjudication any claims of racial
discrimination that occurred prior to his retirement. In the second part
of the memorandum, however, the government argues that the events that
occurred prior to plaintiff's retirement do not constitute adverse,
employment actions and cannot be the premise for claims of relief in this
court. There is a curious and illogical inconsistency in the
government's position. In the first section of its memorandum, the
government chastises the plaintiff for not exhausting his administrative
remedies as to those aspects of his pre-retirement employment about which
he now complains. In the second section, the government remonstrates
that events that occurred during his pre-retirement employment that do
not rise to the level of adverse employment actions. Thus, as ...
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