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DOBBS v. ROCHE

August 2, 2004.

JIMMIE DOBBS, Plaintiff,
v.
DR. JAMES ROCHE, Secretary, United States Department of the Air Force, Defendant.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

  This case comes before the court on the defendant's motion for summary judgment. The plaintiff alleges that his supervisor unlawfully discriminated against him in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The court grants the defendant's motion for summary judgment because the plaintiff did not establish a prima facie case of race discrimination under Title VII nor age discrimination under the ADEA.

  II. BACKGROUND

  A. Factual History

  Jimmie Dobbs, an African-American male in his early-sixties, worked from January 1991 through October 1997, for the Department of the Air Force as Recreation Support Manager, a GS-301-12 level position, at Bolling Air Force Base in Washington, D.C. Dobbs Aff. ¶ 1. On October 14, 1997, the plaintiff signed a Foreign Overseas Employment Agreement assigning him to Osan Air Force Base in Korea and granting him return rights to the position of Recreation Support Manager, a GS-301-12 level position, upon his return from Korea. Def.'s Statement of Undisputed Material Facts ("Def.'s Statement") ¶ 2; Def.'s Mot. Summ. J. ("Def.'s Mot.") Ex. GX1 at 1-2; Dobbs Aff. ¶¶ 9-10; Pl.'s Opp'n Ex. 3. Specifically, the Return Rights Agreement reads in relevant part, "I understand that I have been granted return rights to my former position of Recreation Support Manager, GS-301-12 located at Bolling AFB." Pl.'s Opp'n Ex. 3 at 1; Def.'s Mot. Ex. GX1 at 1-2. On June 10, 1999, the plaintiff notified Mr. Edmond Miles, a supervisor at Bolling Air Force Base, via e-mail, of his intention to exercise his return rights. Pl.'s Opp'n at 2; Pl.'s Opp'n Ex. 4; Johnson Aff. ¶¶ 3-5; see generally Wright Aff. This e-mail notification prompted discussion among personnel at Bolling Air Force Base, including Mr. Miles, to determine the plaintiff's status upon his return. Id. The Air Force subsequently determined that the plaintiff had return rights to the same position he left, that of Recreation Support Manager, a GS-301-12 level position. Def.'s Mot. at 2; Johnson Aff. ¶ 10; Dobbs Aff. ¶ 14. Accordingly, on September 10, 1999, the plaintiff returned to Bolling Air Force Base in that position. Id.; Def.'s Statement ¶ 2. Because another employee occupied this position at the time of the plaintiff's return, the two split the duties and responsibilities associated with the position, each earning the GS-301-12 salary in full, accomplishing the defendant's goal of ensuring uninterrupted gainful employment for both employees. Def.'s Statement ¶ 4; Miles Aff. ¶ 23.

  When the plaintiff returned to Bolling Air Force Base, an Air Force-wide reorganization was in progress. Def.'s Mot. at 2; Looney Aff. ¶ 5; Wiltshire Aff. ¶ 11. As part of the reorganization, three GS-301-12 positions were being eliminated, including that of the plaintiff, Ms. Leslie Lipps, and Mr. Warren Teets, and replaced with three newly-created positions. Id.; Miles Aff. ¶ 14. The Civilian Personnel Office ("CPO") evaluated the new positions to determine whether they were GS-301-12 or upgraded GS-301-13 positions and whether or not the new positions were clear successors of the eliminated positions. Miles Aff. ¶¶ 15-16; Houston Aff. ¶¶ 5-6. When the CPO determines a position to be a clear successor, that is, the position requires the same or similar knowledge, skills, and abilities ("KSA's") as the previous position, the CPO considers the incumbent for non-competitive promotion to the new position. Miles Aff. ¶¶ 15-17. While all three positions were determined to be GS-301-13 positions, only one of the newly-established positions, that replacing Mr. Teets' eliminated position, was determined to be a clear successor. Id. Accordingly, Mr. Teets was considered and subsequently non-competitively promoted to the new GS-301-13 position. Id. The CPO, however, determined that the two other positions,*fn1 those replacing the eliminated positions of the plaintiff and Ms. Lipps, were not clear successors to the eliminated positions, that is, the positions required different KSA's and therefore required the employees to compete for these positions. Id.; Def.'s Statement ¶¶ 6-7; Houston Aff. ¶ 6. The plaintiff remained in the position of Recreation Support Manager for roughly three months, sharing his duties and responsibilities as aforementioned, before the plaintiff was competitively selected for promotion to the new GS-301-13 position. Def.'s Statement ¶ 8; Pl.'s Resps. to Def.'s Admiss. ("Pl.'s Resps.") ¶ 4; Miles Aff. ¶ 13; Def.'s Mot. at 11. B. Procedural History

  On January 15, 2002, the Equal Employment Opportunity Commission ("EEOC") issued the plaintiff a final agency decision right to sue letter entitling the plaintiff to commence this civil action within seventy days of his receipt of the letter. Compl. at 2. On March 21, 2002, the plaintiff initiated this suit against the defendant, alleging that the defendant discriminated against him on account of his race and age, violating both Title VII and the ADEA, by first, forcing him to compete for a promotion that he was entitled to and second, diminishing the plaintiff's duties and responsibilities for three months before his promotion. Id. at 3. The defendant filed its answer on July 29, 2002, advancing, inter alia, the affirmative defense of failure to exhaust administrative remedies with regard to the plaintiff's claim of discrimination based on diminished duties and responsibilities. Answer at 1. On February 4, 2003, the defendant filed its motion for summary judgment. The court now addresses that motion.

  III. ANALYSIS

  A. Exhaustion of Administrative Remedies

 
1. Legal Standard for Exhaustion of Administrative Remedies Under Title VII and the ADEA
  In actions brought under Title VII and the ADEA, a court has authority over only those claims that are (1) contained in the plaintiff's administrative complaint or claims "like or reasonably related to" those claims in the administrative complaint and (2) claims for which the plaintiff exhausted administrative remedies. Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995); Caldwell v. Serv. Master Corp., 966 F. Supp. 33, 49 (D.D.C. 1997). It is the defendant's burden to prove by a preponderance of the evidence that the plaintiff failed to exhaust administrative remedies. Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985) (stating that "because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it"). Meager, conclusory allegations that the plaintiff failed to exhaust his administrative remedies will not satisfy the defendant's burden. Id. at 12. (noting that a mere assertion of failure to exhaust administrative remedies without more is "clearly inadequate under prevailing regulations to establish a failure to exhaust administrative remedies").

  Dismissal results when a plaintiff fails to exhaust administrative remedies. Rann v. Chao, 346 F.3d 192, 194-95 (D.C. Cir. 2003) (affirming the trial court's dismissal of the plaintiff's ADEA claim for failure to exhaust administrative remedies); Gillet v. King, 931 F. Supp. 9, 12-13 (D.D.C. 1996) (dismissing the plaintiff's Title VII claim because he failed to exhaust his administrative remedies).

 
2. The Defendant Failed to Meet his Burden That the Plaintiff Failed to Exhaust his Administrative Remedies
  In this case, the defendant properly raised the affirmative defense of failure to exhaust administrative remedies in his answer. Answer at 1. He has not, however, met his burden of proving by a preponderance of the evidence that the plaintiff failed to exhaust his administrative remedies. As in Marsh, the defendant in this case only put forth meager, conclusory allegations that the plaintiff failed to exhaust his administrative remedies. See generally Answer; Def.'s Mot. The defendant's answer simply states that the "plaintiff failed to exhaust administrative remedies." Answer at 1. The defendant's motion for summary judgment merely repeats the same limited assertion that the "plaintiff failed to raise his `duties and responsibilities' administratively." Def.'s Mot. at 15. The defendant fails to provide adequate evidence, relevant case law, or legal analysis to support his conclusory representation that the plaintiff failed to exhaust ...

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