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JARMON v. POWELL
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.
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 Amalfitano's ineligibility, the promotion was
revoked, but no alternative promotion was issued.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.
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., ...
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