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July 2, 2002


The opinion of the court was delivered by: John D. Bates, United States District Judge.



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 Amalfitano's ineligibility, the promotion was revoked, but no alternative promotion was issued.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. ¶ 31.
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 administrative 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 Mem. in Support of S.J., ...

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