United States District Court, District of Columbia
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.
Around this same time, plaintiff, at Trujillo's request, drafted a new
description for the Branch Chief position, making it a GS-14
level position that would be a combination of plaintiff's Program
Specialist position and the recently vacated Support Service Supervisor
position. Eventually the new position was approved and plaintiff and
Virginia Akers ("Akers"), a white woman, applied for the position.
Although Akers was plaintiff's subordinate, a GS-12, she was selected
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 the
government would have it, a Title VII plaintiff must file an
administrative claim as to every aspect of his employment, no matter how
trivial, but can only press in court those claims that meet the criterion
of an adverse employment action.
This interpretation of Title VII's requirements has nothing to
recommend it. If accepted, Title VII counselors will be besieged with
complaints about every
conceivable action lest complainants be deemed to have failed to exhaust
them. More to the point, the purpose of any statute of limitations is
to protect the defendant from stale claims, i.e., claims that are
difficult to investigate and defend because of the passage of time. But
if the government is right and non-adverse, trivial occurrences in the
work place can never serve as a basis for a claim of relief in this court,
the government already has all the protection it needs. Thus, forcing
government employees to exhaust their administrative burdens as to what
the government classifies as "non-adverse" employment actions generates
paperwork, creates a greater burden for Title VII counselors (who, one
supposes, have enough to do), and does not advance one iota the
effectuation of the policy behind the statute of limitations.
More to the point, a careful review of the complaint, plaintiff's
opposition to defendant's motion, and plaintiff's declaration does not
indicate that he intends to premise a claim for relief upon anything
other than (1) Trujllo's refusal to upgrade plaintiff's position to
GS-14, and (2) plaintiff's not being selected for the position given to
Indeed, it is hard to understand how, for example, a
complaint of inadequate staff support or the mere publication of a
vacancy announcement could, in itself, serve as the premise for a damage
award. In any event, by waving the statute of limitations flag to bar
claims that plaintiff does not and cannot assert, the government is
knocking down straw men.
The true question presented is whether plaintiff may premise a claim
for relief upon Trujillo's refusals to upgrade his position to a GS-14,
even though the last of such refusals occurred in December 1998, and
plaintiff never contacted an EEOC counselor about it. That question is a
practical one; resolution in plaintiff's favor would permit him to claim
back pay from a date earlier than Roque's selection.
Under 29 C.F.R. § 1614.105(a)(1) (2001), an aggrieved person who
believes that he has been discriminated against must initiate contact
with an EEOC counselor within 45 days of the alleged discriminatory
acts. This time-filing requirement has been interpreted as a
prerequisite to initiation of a Title VII claim. Jarrell v. United States
Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1984) (citing Brown v. Gen.
Services Admin., 425 U.S. 820, 832-33 (1976)). As just noted, the
purpose behind this rule is to protect defendants from having to defend
against stale claims. Delaware State College v. Ricks, 449 U.S. 250,
Plaintiff concedes that he did not consult an EEOC counselor within 45
days of any event that antedates his retirement, but he invokes the
"continuing violation" theory, one that allows a plaintiff to litigate
claims that fall outside of the time-filing requirements if he proves
either a "series of related acts, one or more of which falls within the
limitations period, or the maintenance of a discriminatory system both
before and during the statutory period." Palmer v. Kelly, 17 F.3d 1490,
1495 (D.C. Cir. 1994) (quoting Berger v. Iron
Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1422 (D.C. Cir.
1988)); McKenzie v. Sawyer, 684 F.2d 62, 72 (D.C. Cir. 1982);
Valentino v. United States Postal Service, 674 F.2d 56, 65 (D.C.
Cir. 1982); Milton v. Weinberger, 645 F.2d 1070, 1075 (D.C. Cir.
1981). Whether a violation is continuing must be addressed on a
case-by-case review of the facts. Albritton v Kantor,
944 F. Supp. 966, 970 (D.D.C. 1996).
One requirement of any continuing violation claim is that at least one
of the counts is timely filed. Id. at 971. There is no dispute that
plaintiff's contacting the EEOC on October 29, 1999, was within the 45-day
period with regard to his claim for non-selection for the upgraded and
Series of Related Acts
To qualify under the "series of related acts" prong of the continuing
violation doctrine, the otherwise time-barred allegations must
substantially relate to the timely and exhausted violation. Albritton
v. Kantor, 944 F. Supp. at 971; Graham v. Adams, 640 F. Supp. 535, 539
In Milton v. Weinberger, 645 F.2d 1070, the court held that in order to
be continuing, the discrimination must not be limited to isolated
incidents, but must pervade a series or pattern of events that continue
into the filing period. Id. at 1076-77. To determine whether acts are
discrete and isolated or are substantially related, courts, including
this one,*fn3 have found the following factors, adopted in Berry v.
Board of Supervisors of LSU, 715 F.2d 971 (5th Cir. 1983), to be
(1) Do the alleged acts involve the same type of
discrimination, tending to connect them in a continuing
violation? (2) With regard to the frequency of the acts,
are the alleged acts recurring or more in the nature of
an isolated decision? (3) Do the acts possess a degree
of finality that would alert an employee of a need to
assert his or her rights?
Id. at 981.
In this case, plaintiff satisfies the first two criteria with respect
to his post-retirement non-selection and his pre-retirement failure to
upgrade claims. First, both of the claims involve discrimination based on
race. More significantly, the non-selection and the failure to upgrade
had the same practical effect, preventing plaintiff from remuneration at
a GS-14 level for the scope and scale of the work he was performing.
Plaintiff claims that he had been requesting an upgrade for several
years, to no avail. Plaintiff alleges that the expanded position
advertised in July 1999 was quite similar, if not identical, to the one
plaintiff had been seeking all along, reflecting the recurring nature of
the alleged violation. His application for the upgraded position after
he had retired can be seen as yet another attempt at a promotion and thus
defendant's decision not to hire him as part of a persistent refusal to
pay plaintiff what he was worth before and after his retirement. To
describe the failure to promote as discrete and isolated from his
subsequent non-selection is to ignore the context within which these
Defendant points out that Trujillo, plaintiff's supervisor, was not a
member of the three-person panel that ranked the applicants for the July
1999 position and therefore cannot be implicated in his non-selection.
Plaintiff responds that Trujillo appointed two of the three members of
the ranking panel. Although in one instance, the court held that an
argument for relatedness is strengthened "if the adverse actions stem
from the same source,"
Caliendo v. Bentsen, 881 F. Supp. 44, 48 (D.D.C. 1995),
Trujillo's actual involvement in plaintiff's non-selection is not
a prerequisite to allowing the earlier failure to promote claim. That
there may have been different personnel supervisors involved in the two
claims does not, in itself, sever any connection between them. See
Sharma v. Washington Metro. Area Transit Auth., No. 94-305, slip op. at 8
(D.D.C. October 10, 2000).
What makes this case perhaps unique among continuing violation cases is
that the claims that fall outside the filing period predate plaintiff's
voluntarily retirement. Although in some cases, a plaintiff's retirement
might constitute a watershed event distinguishing old claims from new
ones, that does not appear to be the case here. Plaintiff's retirement
was effective as of January 31, 1999, and plaintiff claims that defendant
appears to have wasted little time upgrading his position. I find that
the nine months between plaintiff's retirement and his non-selection is a
short enough time to recognize a nexus between the two acts of alleged
discrimination. See Albritton v. Kantor, 944 F. Supp. at 972 (holding
that promotion denials occurring at ten- to fifteen-month intervals
indicates a recurring pattern). Given that the main purpose of the
time-filing requirements is to preclude stale claims that are "long
past," Delaware State College v. Ricks, 449 U.S. at 256-257, it appears
rather arbitrary to conclude that any related claim was rendered
immediately stale by virtue of plaintiff's retiring.
Once a Title VII plaintiff has reason to believe that an adverse
employment action was discriminatory, he is obliged to see an EEOC
counselor within 45 days. The "continuing violation" theory does not
eliminate this basic obligation:
For statute of limitations purposes, a continuing
violation is "one that could not reasonably have been
expected to be made the subject of a lawsuit when it
first occurred because its character as a violation did
not become clear until it was repeated during the
limitations period," Dasgupta, 121 F.3d at 1139,
typically because it is only its cumulative impact (as
in the case of a hostile work environment) that reveals
Taylor v. F.D.I.C., 132 F.3d 753, 765 (D.C. Cir. 1997); See also
Kilpatrick v. Riley, 98 F. Supp.2d 9 (D.D.C. 2000).
In this case, the finality factor cuts against plaintiff if he
ultimately admits that he had reason to believe at the time that
Trujillo's refusals to upgrade his position were discriminatory. If he so
admits, then he will be hard pressed to argue that the motivation for
Trujillo's action was unclear. He has made no such admission yet,
however, and on the present record, the substantiality of the connection
between Trujillo's acts prior to plaintiff's retirement and the agency's
post-retirement selection of Roque outweighs this factor and requires the
denial of the government's motion.
In addition to showing a series of related acts, a party may establish
a continuing violation by demonstrating the maintenance of a
discriminatory system or policy that was in place both before and after
the limitations period. Palmer v. Kelly, 17 F.3d at 1495. Whether a
policy of discrimination exists is a question of fact, requiring the
charging party to point to specific acts from which the underlying policy
might reasonably be inferred.
Plaintiff claims that there is evidence of system-wide discrimination
against blacks. Specifically, plaintiff cites the non-promotion of
blacks, the requirement that
blacks perform duties above their grade, and the refusal to upgrade
positions held by blacks until after they are vacated. In support of this
contention, plaintiff offers six examples of black employees retiring from
their positions in the Program Services Division, only to have them filled
by white persons. Together, these acts are said to constitute a pattern of
discriminatory practices against blacks.
In Graham, the court found that plaintiffs' unsupported allegations
that the defendants' actions constituted policies and practices of
discrimination were sufficient to preserve a policy claim against a
12(b)(6) motion. Id. at 539. The court noted that "given the inclusion
by [plaintiffs] of the terms `policies and practices' in their
complaint, the Court must conclude that the plaintiffs have suggested a
`connection' and thereby sufficiently pled a continuing violation case."
Id. at 539.
Based on these facts, plaintiff has adequately alleged, in the context
of a motion to dismiss, that defendant's actions constitute a
discriminatory policy with respect to the failure to promote or upgrade
the positions of black employees. Plaintiff's claim of the existence of
a discriminatory policy, however, suffers from the same potential defect
as his claim of a series of "related acts." If he admits that he was
aware of a pattern of not promoting blacks prior to retirement and when
Trujillo refused to upgrade his position, he faces authority for the
proposition that his knowledge required him to consult with an EEOC
counselor when Trujillo refused to upgrade him. See e.g., Kilpatrick v.
Riley, 98 F. Supp. 9, 17 (D.D.C. 2000); Villines v. United Bhd. of
Carpenters and Joiners of America, AFL-CIO, 999 F. Supp. 97, 102 (D.D.C.
1998). The question is not, however, free from doubt. Compare Taylor v.
F.D.I.C., 132 F.3d 753, 765 (D.C. Cir. 1997), with Anderson v. Zubieta,
180 F.3d 329, 336 n. 11 (D.C. Cir. 1999). There is certainly no reason to
resolve the issue on this record; it should await the conclusion of
discovery and the filing of a dispositive motion:
Whether plaintiff will ultimately be able to prove
that the alleged discriminatory actions are connected
to one another and constitute an `ongoing program of
discrimination' is an entirely different question and
not one which the Court must address in the context of
a motion to dismiss. If, after discovery, the
Defendant believes that there is no evidence to
support Plaintiff's continuing violation theory,
Defendant can file a partial motion for summary
judgment with respect to the remote claims.
Caliendo v. Bentsen, 881 F. Supp. at 48. See also Shehadeh v. Chesapeake
and Potomac Telephone Company, 595 F.2d 711 (D.C. Cir. 1978) (citing
Egelston v. State Univ. Coll. of Geneseo, 535 F.2d 752
, 755 (2nd Cir.
In order to revive an untimely allegation by claiming a continuing
violation, a "plaintiff must have properly alleged the continuing
violation theory in both the administrative complaint as well as the
formal complaint" before the court. Caliendo v. Bentsen, 881 F. Supp. at
47. Therefore, according to defendant, plaintiff waived his continuing
violation claim, as he failed to include the theory in his administrative
complaint. However, "administrative complaints should be read liberally"
and should not be held to the same standard as judicial pleadings.
Albritton v. Kantor, 944 F. Supp. at 971; Caliendo v. Bentsen,
881 F. Supp. at 47. Moreover, it is sufficient that the continuing
violation theory be evidenced in the EEOC charge, and it need not be
specifically alleged. Sosa v. Hiraoka, 920 F.2d 1451,
1458 (9th Cir. 1990). Essentially, the EEOC must be put on notice of the
continuing violation theory that the plaintiff enunciates in his district
court complaint. Graham v. Adams, 640 F. Supp. at 538.
In the present case, plaintiff adequately asserted a continuing
violation in his EEOC complaint. In particular, plaintiff alleged that
he was the only person working within his department. Plaintiff also
mentions his previous attempts to achieve an upgrade to GS-14, stating,
"in previous conversations with Mr. Trujillo, he informed me that the
position would not be elevated to the GS-14 level. Within seven months of
my leaving the agency, the position was advertised at the higher
level . . ." Def. Mot., Exhibit 3 (Plaintiff's Complaint of Discrimination
to EEOC at 2). Even more telling is the fact that plaintiff sought back
pay from November 1995 to June 2001. Unless he was stating a claim for
failure to upgrade during this period, he would never have requested such
corrective action. Furthermore, the EEOC counselor addressed the failure
to upgrade issue in his report. Def. Mot., Exhibit 1 (EEOC Counselor's
Report at 3). In light of these considerations, it is fair to conclude
that the continuing violation claim was evidenced in the EEOC charge.
Accordingly, plaintiff did not waive his right to assert the theory in
his district court complaint.
In accordance with the attached opinion, I conclude that the plaintiff
has properly pled a continuing violation with respect to his failure to
upgrade claim. A subsequent ruling on plaintiff's Motion to Compel is
forthcoming. It is therefore, hereby,
ORDERED that Defendant's Motion to Dismiss or, in the Alternative, for
Summary Judgment [#5] is DENIED.