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January 31, 2002


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 FEMA.
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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