United States District Court, District of Columbia
July 2, 2002
WESLEY JARMON, PLAINTIFF,
MICHAEL K. POWELL, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, DEFENDANT.
The opinion of the court was delivered by: John D. Bates, United States District Judge.
Plaintiff Wesley Jarmon, an African-American, brings this case under
42 U.S.C. § 2000e, against Michael K. Powell, Chairman of
the Federal Communications Commission ("FCC" or "defendant") for race
discrimination with respect to promotions. Presently before the Court is
defendant's motion for summary judgment based on plaintiff's failure to
state a claim and failure to exhaust administrative remedies. For the
reasons stated below, the motion is granted.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, an employee in the FCC's Audit Branch since 1987, charges
defendant with discriminatory practices in the award of promotions.
Amended Compl. ¶¶ 2, 8. Plaintiff alleges that between 1987 and
1997, promotions above GS-13 for white employees occurred without
competitive application and "as a matter of due course," id. ¶ 9,
10-12, but that in 1997, when it was plaintiff's "turn" to be promoted to
GS-14, he was allegedly informed that any promotion would require
competitive application. Id. ¶ 14. Plaintiff also alleges that
managers in the Audit Branch had a practice of identifying white male or
female employees for promotion prior to an announcement of a vacancy.
Id. ¶ 18. In his Amended Complaint, plaintiff points to particular
instances in which white employees were hired for positions allegedly
created for them, even though plaintiff was allegedly better qualified.
Id. ¶¶ 16-17, 26.
The heart of plaintiff's Amended Complaint revolves around two specific
promotional opportunities that plaintiff failed to receive. The first was
a GS-14 position for which plaintiff applied in 1998 under vacancy
announcement #98-91A. Id. ¶ 20. According to plaintiff, although
the vacancy announcement specified that the position was in Washington,
D.C., plaintiff's manager selected Vincent Amalfitano, an FCC employee
located in New York. Id. ¶¶ 21-22. When plaintiff complained to
personnel about Mr. Amalfitano's ineligibility, the promotion was
revoked, but no alternative promotion was issued. Id. ¶¶ 23-25. The
second promotion involved a vacancy at GS-15 posted in August 1999. Id.
¶ 29. According to plaintiff, a white male was selected for this
position despite the fact that plaintiff was better qualified. Id. ¶
Plaintiff also asserts that he was denied job assignments based upon
his race and that there was a correlation between job assignments,
ratings and promotions in the Audits Branch. Id. ¶ 34. Plaintiff
also alleges that he was the victim of discrimination between 1987 and
1997, but that he did not recognize it because there were no similarly
situated African-American employees in the Audits Branch at the time who
were eligible for promotion. Id. ¶ 36.
Plaintiff filters his allegations into two counts. In Count I, he
asserts a claim of race discrimination in promotion practices.
Specifically, plaintiff alleges that he was not awarded promotional
opportunities for a significant period of time, although Caucasians with
lower qualifications and less experience were promoted. Id. ¶ 39.
Plaintiff also alleges that management tailored vacancy announcements to
fit specific Caucasian employees. Id. ¶ 42.
In Count II, plaintiff asserts a claim for race discrimination based on
compensation. Specifically, he alleges that since 1997 he has performed
work equal in skill, effort and responsibility to the work of similarly
situated Caucasian employees, who were paid higher salaries for their
work. Id. ¶ 46. At argument, counsel for plaintiff explained that
Count II is essentially based on the same factual allegations as the
non-promotion claim in Count I.
Before substantial discovery had been conducted, defendant moved for
summary judgment, asserting that plaintiff cannot establish a prima facie
case with respect to the GS-15 position and that plaintiff's
complaint was untimely with respect to earlier
non-promotions and allegations of discrimination in compensation.
Plaintiff did not file an opposition to defendant's motion. Instead,
plaintiff filed a motion to strike defendant's motion on the ground that
it was premature because critical discovery had not yet been conducted.
Defendant opposed plaintiff's motion to strike, asserting that further
discovery was not necessary because all of the relevant facts underlying
the summary judgment motion were either undisputed or in the control of
plaintiff. Plaintiff then filed a motion for leave to file supplemental
exhibits in opposition to the motion for summary judgment, attaching
exhibits and an affidavit purporting to rebut defendant's timeliness
arguments.*fn1 Following a conference with the parties, the Court denied
plaintiff's motion to strike and permitted plaintiff to file an opposition
to defendant's summary judgment motion. Discovery has not yet been
completed in this case, and has essentially been stayed since the filing
of defendant's motion.
A case may be resolved on a motion for summary judgment when the
evidence demonstrates that there is no genuine issue of material fact.
See Fed.R.Civ.P. 56. In considering a summary judgment motion, the
evidence must be viewed in the light most favorable to the nonmoving
party. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150
(2000). However, a nonmoving party must establish more than a "scintilla
of evidence" in support of its position. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). If the "evidence is merely colorable, or
is not significantly probative, summary judgment may be granted." Id. at
249-50 (internal citation omitted).
Defendant essentially divides plaintiff's Amended Complaint into three
separate sets of allegations, each of which it argues is subject to
summary judgment — a claim for failure to promote to GS-14 in 1998
under vacancy announcement #98-91A; a claim for discrimination in
compensation since 1997; and, a claim for failure to promote with respect
to the GS-15 position in 1999.
I. Failure to Promote to GS-14 and Discrimination in Compensation
With respect to the failure to promote to GS-14 in 1998, as well as the
related alleged discrimination in compensation, defendant asserts that
plaintiff did not comply with administrative deadlines. Under
29 C.F.R. § 1614.105(a)(1), an aggrieved party must initiate contact
with an EEO counselor within 45 days of the date of the alleged
discriminatory conduct or the effective date of an alleged
discriminatory personnel action. Failure to exhaust administrative
remedies ordinarily bars a plaintiff from proceeding on his claims in
court. Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985); Williamson v.
Shalala, 992 F. Supp. 454, 457 (D.D.C. 1998) ("As a general rule,
non-compliance with administrative deadlines will bar a plaintiff from
litigating his claims in court."). Here, defendant argues, plaintiff
became aware that he was not selected for GS-14 in 1998,*fn2 but did not
contact an EEO counselor until December 1, 1999. See Def.'s
Support of S.J., Ex. D at 1. Accordingly, defendant contends, plaintiff
cannot maintain any claim with respect to a failure to promote to GS-14
in 1998 (or earlier) or discrimination in compensation occurring prior to
the 45-day period ending December 1, 1999.*fn3
Plaintiff opposes defendant's motion on the grounds that his efforts to
contact the OWD in May 1998 entitle him to waiver, estoppel or equitable
tolling of administrative deadlines with respect to his non-promotion to
GS-14, and that he has alleged a continuing violation. At the very
least, plaintiff argues, there are genuine issues of fact that preclude
entering summary judgment for defendant.
A. Waiver, Estoppel or Equitable Tolling
As the D.C. Circuit has explained, the requirements for timely filing
of administrative claims "are not jurisdictional prerequisites to suit,
but are more `like a statute of limitations, [which] is subject to
waiver, estoppel, and equitable tolling.'" Jarrell v. U.S. Postal
Service, 753 F.2d 1088, 1091 (D.C. Cir. 1985) (quoting Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393 (1982)). Waiver, of course,
applies where a defendant "intentionally relinquishes or abandons an
affirmative defense." Harris v. Secretary, U.S. Dep't of Veterans
Affairs, 126 F.3d 339, 343 n. 2 (D.C. Cir. 1997). The doctrine of
equitable estoppel, on the other hand, "prevents a defendant from
asserting untimeliness where the defendant has taken active steps to
prevent the plaintiff from litigating in time," and the principle of
equitable tolling "allows a plaintiff to avoid the bar of the limitations
period if despite all due diligence he is unable to obtain vital
information bearing on the existence of his claim." Currier v. Radio
Free Europe/Radio Liberty, Inc., 159 F.3d 1363, 1367 (D.C.Cir. 1999)
Plaintiff has submitted an affidavit describing his attempts to file an
administrative complaint in 1998 concerning his non-promotion to GS-14.
Pl.'s Opp., Ex. D. He states that in February 1998 he contacted the OWD
about a rumor that one of the GS-14 positions under vacancy announcement
#98-91A "was posted for Vincent Amalfitano." Id. ¶ 6. The Deputy
Chief of OWD, Harvey Lee, allegedly told plaintiff that he "could not
file a complaint on a rumor" and "suggested that [plaintiff] wait for the
application process to be complete before complain[ing]." Id. ¶ 7.
In May 1998, plaintiff contacted the OWD "to file a complaint because . . .
selected Vincent Amalfitano and Bob Bentley for
promotions to the GS-14 level to fill the vacancy announcement #98-91A."
Id. ¶ 8. According to plaintiff, "despite the fact that [plaintiff]
had reason to know that [he] had been discriminated against, neither Jack
Gravely, Chief of the OWD, or Harvey Lee would take [his] complaint."
Id. ¶ 9. They "suggested that [plaintiff] let them look into the
issue before [plaintiff] proceeded with a complaint." Id. ¶ 10.
According to plaintiff, on June 3, 1998, Harvey Lee told plaintiff that
the FCC was going to cancel the position awarded to Mr. Amalfitano, and
that Mr. Lee had spoken to plaintiff's supervisors about plaintiff's
potential to fill the vacancy. Id. ¶ 11. Copies of emails between
plaintiff and Harvey Lee during May 1998 corroborate that plaintiff had
discussions with Mr. Lee about his failure to receive timely promotions.
See Pl.'s Opp., Exs. B and E.
Plaintiff therefore argues that he is entitled to equitable relief from
administrative deadlines because he fulfilled his duty to contact an EEO
counselor when he discussed the GS-14 vacancy with the OWD in May 1998.
He contends that he was led to believe that an investigation was underway
and that he relied on the advice of the OWD to his detriment. Further,
plaintiff argues that his communications with the OWD satisfied the
purpose of the "administrative initial contact" requirement by informing
the OWD of his belief that he had been subject to a long-standing pattern
of continuing discrimination. In advancing these arguments, plaintiff
relies heavily on Bowdre v. Richardson, 131 F. Supp.2d 179 (D.D.C.
2001), in which Judge Urbina of this Court found that a plaintiff could
be excused for arguably missing administrative deadlines because his
lawyer had contacted defendant's EEO office within 45 days of the alleged
discrimination — despite the facts that no formal administrative
process flowed from that contact and no administrative complaint was filed
until about one year after the first contact.
Defendant, on the other hand, contends that the discussions between
plaintiff and the FCC's OWD office in May 1998 did not relate to a
complaint about race discrimination, but rather to a complaint by
plaintiff that there was a clerical error in vacancy announcement
#98-91A. A declaration from Jack Gravely of OWD affirms that plaintiff
did not "indicate . . . that he believed had been discriminated against
on the basis of his race." Def.'s Reply, Ex. A ¶ 2. Rather, Mr.
Gravely says, plaintiff complained that "applications of people living
outside of Washington, D.C. were given favorable treatment based upon the
applicants' personal friendships with supervisors." Id. Accordingly, Mr.
Gravely (who is not himself an EEO counselor) did not refer plaintiff to
an EEO counselor. Id. Mr. Gravely denies that he at any time "state[d]
to [plaintiff] that he could not file an EEO complaint or discourage[d]
him from doing so." Id. Morever, Mr. Gravely says that plaintiff never
presented him with "a signed, dated, written complaint pertaining to race
In his declaration, Harvey Lee states that during May 1998 plaintiff
"raised concerns regarding his failure to be promoted to the GS-14 level
and the fairness of his past performance ratings." Def.'s Reply, Ex. B
¶ 2. Plaintiff "did not indicate . . . that he believed he was
discriminated against on the basis of his race regarding
process for [vacancy announcement #98-91A.]" Id. Rather, Mr. Lee says,
the "thrust of [plaintiff's] concerns was that other employees were
receiving favorable treatment based upon their personal friendships with
their supervisors." Id. Mr. Lee says that he told plaintiff that he
would "look into [plaintiff's] concerns" but that he did not refer
plaintiff to an "EEO counselor or to OWD's EEO Program Manager at that
time because [plaintiff] did not indicate . . . that he wanted to pursue
a discrimination complaint." Id. Mr. Lee subsequently concluded that
vacancy announcement #98-91A failed to specify clearly that the selectee
would be permitted to telecommute, or work from another location. Id.
¶ 3. Mr. Lee communicated his conclusion to the FCC human resources
department and on June 4, 2002, advised plaintiff that the selection of
Mr. Amalfitano would be canceled. Id. Mr. Lee, like Mr. Gravely, denies
that he ever told plaintiff "that he could not file an EEO complaint or
discourage[d] him from doing so." Id. In addition, Mr. Lee says that
plaintiff never presented him with "a signed, dated, written complaint
pertaining to race discrimination regarding his non-selection for VAN
Plaintiff bears the "burden of pleading and proving in the district
court any equitable reasons for his failure to meet the [forty-five]-day
requirement." Saltz v. Lehman, 672 F.2d 207, 217 (D.C. Cir. 1982). The
Supreme Court has cautioned that these equitable doctrines should be
"applied sparingly." Nat'l R.R. Passenger Corp. v. Morgan, No. 00-1614,
2002 U.S. LEXIS 4214, at *25 (June 10, 2002); see also Washington v.
Washington Metro. Area Transit Auth., 160 F.3d 750, 753 (D.C. Cir. 1998)
(the "court's equitable power to toll the statute of limitations will be
exercised only in extraordinary and carefully circumscribed instances"
(quotation omitted)). Here, plaintiff has not demonstrated the requisite
circumstances for application of equitable doctrines, nor has he
presented any genuine issue of material fact.
It is clear enough that plaintiff had communications with the OWD about
his failure to be promoted in a timely fashion, both in general and as
specifically related to vacancy announcement #98-91A. But any allegation
that this non-promotion was a result of race discrimination is notably
absent from the emails and affidavit that plaintiff has submitted. In
plaintiff's emails to Harvey Lee, plaintiff alleges that there has been an
"injustice," that he has been "treated unfairly," that he has "been
discriminated against," and that there is a "serious . . . issue of
discrimination." Pl.'s Opp., Ex. B (emails from May 1, 8, and 13,
2002). But the context of these emails provides no indication that the
"injustice" of which plaintiff complained related to "discrimination"
based upon race rather than "discrimination" based upon some other
criteria, such as interpersonal factors or financial circumstances.*fn6
Plaintiff describes conversations that he had with the OWD about
"rumor[s] that one of the vacancy announcements #98-91A for a GS-14
position was posted for Vincent Amalfitano." Pl.'s Opp., Ex. D ¶ 6.
But plaintiff never states that he informed the OWD that he believed that
race discrimination played a role in Mr. Amalfitano's selection. At
most, plaintiff states that, at the time of his communications with the
OWD, he "had reason to know that [he] had been discriminated against."
Id. ¶ 6 (emphasis added). Plaintiff does not say that he believed he
had been discriminated against on the basis of race, much less that he
communicated any allegation of race discrimination to the OWD.
Certainly, the OWD's failure to refer plaintiff to an EEO counselor does
not warrant equitable relief from deadlines where plaintiff's complaints
were insufficient to put the FCC on notice that he was asserting an equal
employment violation.*fn7 See Barber v. CSX Distribution Svcs.,
68 F.3d 694, 702 (3d Cir. 1995) (plaintiff's letter that did not
explicitly or implicitly allege that age was the reason for unfair
treatment did not constitute "protected conduct" to support retaliation
claim because "[a] general complaint of unfair treatment does not
translate into a charge of illegal age discrimination" (emphasis in
Even if plaintiff had communicated an allegation of race discrimination
to the OWD, he might not be entitled to relief from administrative
deadlines. Plaintiff's contact with the OWD on this matter ceased in
early June 1998. Nevertheless, he did not contact an EEO counselor until
December 1, 1999, some 18 months later, and did not file his
administrative complaint until January 27, 2000. Plaintiff provides no
direct explanation for the extended time lag, during which he had no
contact with either the OWD or an EEO counselor concerning his
non-promotion. At most, plaintiff suggests that he did not pursue the
matter further because he "infer[red] that the OWD was investigating his
allegation of discrimination in promotion." Pl.'s Opp. at 9. The basis
for plaintiff's inference is a May 22, 1998, email in which Harvey Lee
states that he has requested some documents from plaintiff's supervisor
and "will get back to [plaintiff] as soon as [OWD has] had a chance to
look at all the information." Pl.'s Opp., Ex. E.
Plaintiff's lack of diligence cannot be excused. Contrary to the
suggestion in his brief, plaintiff does not anywhere in his affidavit or
other factual materials indicate that he believed that the OWD was
conducting an on-going investigation with respect to his complaint after
June 1998. To the contrary, the last event referenced in plaintiff's
affidavit is a conversation with Mr. Lee on June 3, 1998, in which Mr.
Lee informed plaintiff that Mr. Amalfitano's
promotion would be canceled
and that Mr. Lee had spoken with plaintiff's supervisors about his
potential to fill the vacancy. See Pl.'s Opp., Ex. D ¶ 12. Thus the
conclusion to be drawn from plaintiff's factual materials is that after
the June 3 conversation plaintiff should have reasonably believed that
his complaint to the OWD concerning vacancy announcement #98-981A was
closed. Plaintiff's failure to take further action over the ensuing 18
months belies any suggestion that he exercised due diligence. Bowdre,
131 F. Supp.2d at 185 (the "plaintiff will not be afforded extra time to
file without exercising due diligence, and the plaintiff's excuse must be
more than a `garden variety claim of excusable neglect.' Irwin v. Dep't
of Veterans Affairs, 498 U.S. 89, 96 111 S.Ct. 453, 112 L.Ed.2d 435
The Court does not agree with plaintiff that Bowdre provides a basis
for relieving plaintiff from the administrative deadlines in this case.
In Bowdre, plaintiff's lawyer met with defendant's EEO office during the
45-day period to assert plaintiff's claims for discrimination and
retaliation. In that meeting, plaintiff's lawyer was expressly informed
that plaintiff's complaints would be considered "pending" and that,
because plaintiff himself had been barred from the premises, time
limitations would be tolled and the normal time frame for processing an
EEO claim would not apply until plaintiff returned to work. Id. at 182.
Defendant's EEO office thus implicitly acknowledged that plaintiff had
properly raised a discrimination claim and expressly instructed plaintiff
that he need not take further action in order to preserve the claim.
Accordingly, the court in Bowdre found that plaintiff had demonstrated
"either affirmative misconduct or imparting of misinformation on the
government's part that would justify a toll." Id. at 186.
Here, in contrast, plaintiff did not articulate his allegations in a
manner that put the OWD on notice that he was seeking recourse for
alleged race discrimination. The OWD's failure to direct plaintiff on
how to pursue a race discrimination complaint was thus understandable and
did not constitute affirmative misconduct. Moreover, plaintiff has not
demonstrated that Harvey Lee's May 22, 1998, email, or any other conduct
by the OWD, provided a sufficient justification for plaintiff to wait
until December 1999 to take further action on his allegations. Compare
Jarrell, 753 F.2d at 1092 (failure to contact EEO counselor "may be
excused if it is the result of justifiable reliance on the advice of
another government officer"). Accordingly, plaintiff has failed to carry
his burden of showing entitlement to equitable relief from the
administrative deadlines at issue. There is, moreover, no genuine issue
of material fact that would preclude rejection of plaintiff's arguments
for waiver, estoppel, or equitable tolling as a matter of law.
B. Continuing Violation Theory
Plaintiff's remaining contention is that his claim for non-promotion to
GS-14 and the related claim for discrimination in compensation are
insulated from untimeliness because he has pled a continuing violation.
At the time that this case was briefed and argued, the law in this
Circuit was that a continuing violation is established where a plaintiff
proves a "series of related [discriminatory] acts, one or more of which
falls within the limitations period, or the maintenance of a
discriminatory system both before and during the [limitations] period."
Valentino v. U.S. Postal Service, 674 F.2d 56, 65 (D.C.Cir. 1982)
(internal quotation and citation omitted). According to plaintiff, his
Amended Complaint meets this standard because it identifies a series of
related discriminatory promotional practices — in particular, the
tailoring of promotional vacancies to fit the white employees that the
FCC seeks to
promote. Plaintiff contends that the failure to promote him
to GS-15 in 1999 was a result these practices, as was the failure to
promote him to GS-14 in 1998. Because plaintiff's administrative
complaint was timely with respect to the GS-15 non-promotion, plaintiff
argues, he can reach back to capture the non-promotion to GS-14 in 1998,
as well as any other promotional opportunities that he did not receive as
a result of the FCC's discriminatory practices.
It is doubtful that plaintiff's theory could succeed under existing
Circuit law. Any doubt has been removed, however, for the Supreme
Court's recent decision in National R.R. Corp. v. Morgan is fatal to
plaintiff's continuing violation theory. In National R.R., the Court held
that, under Title VII, "discrete discriminatory acts are not actionable
if time barred, even when they are related to acts alleged in timely
filed charges." 2002 U.S. LEXIS 4214, at *24. As the Court explained,
"[e]ach incident of discrimination . . . constitutes a separate
actionable `unlawful employment practice'" for which a timely compliant
must be filed. Id. at *25. The Court rejected the contention that a
claim based upon a discrete discriminatory act occurring outside the
limitations period can be saved from untimeliness by alleging that the
act is "plausibly or sufficiently related" to another discriminatory act
for which a timely claim has been filed. Id. Rather, each discrete
discriminatory act, such as a failure to promote, "starts a new clock for
filing charges alleging that act." Id. at *24-25.
Accordingly, under National R.R., the fact that plaintiff may have
timely pursued his administrative remedies with respect to the
non-promotion to GS-15 does not salvage his claim for non-promotion to
GS-14. The non-promotion to GS-14 was a "separate actionable `unlawful
employment practice'" for which plaintiff was required to pursue a remedy
within the specified deadlines. It is of no import that the GS-14 and
GS-15 vacancy announcements were allegedly both tailored with the
discriminatory purpose of excluding plaintiff; under National R.R., each
non-promotion was still a discrete act of discrimination requiring timely
pursuit of a remedy. Accordingly, because plaintiff did not timely
contact an EEO counselor with respect to non-promotion to GS-14, his
claim concerning the GS-14 vacancy fails even under his proffered
continuing violation theory.*fn8
II. Non-Promotion to GS-15
Defendant moves to dismiss plaintiff's claim for non-promotion to GS-15
on the ground that plaintiff cannot make out a prima facie case. In
order to establish a prima facie case for non-promotion, a plaintiff must
allege, inter alia, that he applied for, and was qualified for, a
position that he did not receive. See Freeman v. Lewis, 675 F.2d 398, 400
(D.C. Cir. 1982). Here, defendant points out, it is undisputed that
plaintiff did not apply for the GS-15 position. See Compl. at 1 (March
20, 2001) ("My promotion was denied for a GS-15 position because I did
not apply for that position."); Def.'s Mem. in Support of S.J., Ex. C ("I
did not apply for the GS-15 position"). Moreover, the August 1999
vacancy announcement for the GS-15 position specified that, to be
eligible, candidates would need at least one year in grade at GS-14,
whereas at the time of the posting, plaintiff had been in a GS-14
position for only one month. See Pl.'s Opp.,
Ex. D ¶ 5 (noting that
plaintiff was employed at GS-14 starting on July 18, 1999); Amended
Compl. ¶¶ 29-30 (GS-15 position was posted on August 25, 1999, and was
awarded in September 1999). Accordingly, defendant argues, plaintiff's
claim concerning non-promotion to GS-15 fails as a matter of law because
plaintiff neither applied nor was qualified for the open position.
Plaintiff, in response, does not contend that he applied for the GS-15
position or that he met the one-year requirement specified in the vacancy
announcement. Instead, he argues: 1) that his ineligibility for the
GS-15 position was a direct result of the discriminatory failure to
promote him to GS-14 in 1998; and 2) that the GS-15 vacancy announcement
was tailored to exclude him from eligibility.
Neither of these arguments has merit. With respect to the first
argument, it is well-settled that in assessing whether a Title VII
violation has occurred the "proper focus is upon the time of the
discriminatory acts, not upon the time at which the consequences of the
acts became most painful." Delaware State College v. Ricks, 449 U.S. 250,
258 (1980) (quotation and citation omitted) (emphasis in original). "The
emphasis is not upon the effects of earlier employment decisions; rather
it `is [upon] whether any present violation exists.'" Id. (emphasis in
original) (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558
(1977)). Here, the only identifiable discriminatory act is the failure
to promote plaintiff to GS-14 in 1998; plaintiff's subsequent
ineligibility for the GS-15 promotion in 1999 is just "a delayed, but
inevitable consequence" of the non-promotion to GS-14, not an actionable
violation in its own right. Delaware State College, 449 U.S. at 257-58.
Plaintiff has not shown that he applied for and was qualified for the
GS-15 position at issue, and he cannot remedy this deficiency simply by
linking the non-promotion to an earlier, time-barred claim.
Plaintiff's allegation that the GS-15 position was somehow illicitly
crafted is also insufficient. 5 C.F.R. § 300.604(a) specifies that,
subject to certain exceptions, "[c]andidates for advancement to a
position at GS-12 and above must have completed a minimum of 52 weeks in
positions no more than one grade lower (or equivalent) than the positions
filled." Neither in his briefs nor at argument did plaintiff identify
any reason why the 52-week requirement in 5 C.F.R. § 300.604(a) would
not have applied to the GS-15 position at issue. That requirement is
imposed throughout the federal government, not just upon the FCC.
Accordingly, plaintiff's allegations that the GS-15 vacancy announcement
was tailored to exclude him cannot sustain a claim of discrimination.
Plaintiff's GS-15 non-selection claim therefore fails as a matter of
Plaintiff did not comply with the relevant administrative deadlines
governing his claims for failure to promote to GS-14 and discrimination
in compensation. He has not met his burden of showing entitlement to
equitable relief from those deadlines, nor has he alleged a viable
continuing violation theory in light of the Supreme Court's recent
National R.R. decision. Finally, his claim for failure to promote to
GS-15 is substantively deficient. There are no genuine issues of
material fact precluding the entry of summary judgment at this time or
requiring further discovery. Accordingly, defendant is entitled to
judgment as a matter of law on plaintiff's claims.
A separate order has been issued on this date.
Upon consideration of Defendant's Motion for Summary Judgment,
Plaintiff's Motion for Leave to File Supplemental Exhibits in Opposition
to Defendant's Motion for Summary Judgment, the submissions of the
parties, the hearing with the Court on February 13, 2002, and the entire
record, it is hereby
ORDERED that plaintiff's motion for leave to file be and hereby is
GRANTED; and it is further ORDERED that defendant's motion for summary
judgment be and hereby is GRANTED for the reasons stated in the Court's
Memorandum Opinion issued on this date, and that defendant is awarded
judgment on plaintiff's claims as a matter of law.