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Moore v. Chertoff

July 7, 2006

REGINALD MOORE ET AL., PLAINTIFFS,
v.
MICHAEL CHERTOFF, DEFENDANT.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs and defendant have moved for reconsideration of the March 30, 2006 Memorandum Opinion and Order ("March 2006 Opinion"), which ruled that plaintiffs could not plead their untimely filed claims dating back to 1974 under a theory of equitable estoppel, but plaintiffs' claims concerning the building blocks of promotion had been vicariously exhausted and could be pled in the amended complaint. Plaintiffs argue that they are nonetheless entitled to bring non-promotion claims dating back to 1993 because they have alleged a continuing violation which saves these otherwise untimely claims. Defendant argues, among other things, that claims of discrimination in the building blocks of promotion should not be deemed vicariously exhausted because the representative plaintiff's claim did not implicate the building blocks of promotion and he lacks standing to bring a class complaint for injuries he did not suffer. Both parties request that the time period of building block claims that plaintiffs may file be clarified. Because plaintiffs have properly alleged a continuing violation in a pattern and practice suit, they may plead non-promotion claims dating back to 1993. Because plaintiffs' timely filed and fully exhausted non-promotion class claim vicariously exhausts contemporaneous and subsequent building block claims, claims concerning the building blocks of promotion dating back to 1999 may be pled.

BACKGROUND*fn1

Secret Service Agent John Turner timely contacted an EEO counselor in February 2000 after learning of his non-selection to a GS-14 position for which he had applied. Agent Turner also filed an administrative class complaint alleging that "the Secret Service has discriminated against African-American Agents through its personnel policies, practices, and procedures." (Pls.' Motion for Reconsideration, Ex. A, Second Amended Class Complaint ("Second Amended Class Complaint") ¶ 2.) In describing his own alleged discriminatory non-promotion, Agent Turner noted his strong qualifications, including a high job evaluation score. (See id. ¶¶ 35-40.) With regard to black agents as a class, the class complaint alleged enduring and systematic discrimination in selection for competitive positions; performance evaluations; transfers, assignments, and other career enhancing opportunities; assignment to undesirable work; hiring practices; testing; disciplinary policies and practices; and awards and bonuses. (See id. ¶¶ 12-25.)

At the time of Agent Turner's timely filed non-promotion class claim, the Secret Service's promotion policy was divided into two phases: (i) the Merit Promotion Plan ("MPP") scoring process,*fn2 a multi-tiered evaluation process that involves the scoring of candidates by supervisors and peers on the candidates' past performance and experience, and (ii) the bid and selection process, a process with limited directions and no written evaluation procedures where the promotion Advisory Board selects the candidate for a given vacancy. (See Def.'s Opp'n to Pls.' Mot. for Reconsideration, Ex. 1, Decl. of Barbara Salinas ("Salinas Decl.") ¶¶ 4-19.) Only the applicants with the highest MPP scores for a given vacancy are able to be considered in the bid and selection phase of the promotion process. (See id. ¶¶ 14-15.)

The March 2006 Opinion held that plaintiffs could not plead their untimely filed claims dating back to 1974 under a theory of equitable estoppel, but plaintiffs could plead claims concerning the building blocks of promotion because they had been vicariously exhausted by Agent Turner's non-promotion class claim. Plaintiffs have moved for reconsideration arguing that they have alleged a continuing violation in a pattern and practice suit and are entitled to litigate non-promotion claims dating back to the inception of defendant's discriminatory policy. Defendant has moved for reconsideration arguing that plaintiffs' building block claims were not vicariously exhausted by Agent Turner's complaint, and that if building block claims were vicariously exhausted, only claims from July 2, 1999 to May 3, 2000 were exhausted.

DISCUSSION

I. DOCTRINE OF CONTINUING VIOLATIONS

Generally, a federal employee must contact an agency equal employment opportunity ("EEO") counselor within forty-five days of an alleged act of employment discrimination in order for the claim to be timely. 29 C.F.R. § 1614.105(a)(1). However, in a pattern and practice suit where there is a continuing violation, a plaintiff may "litigate claims that fall outside of the time-filing requirements if he proves either a 'series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the statutory period." Pleasants v. Allbaugh, 185 F. Supp. 2d 69, 73 (D.D.C. 2002) (quoting Palmer v. Kelly, 17 F.3d 1490, 1495 (D.C. Cir. 1994)); see Anderson v. Zubieta, 180 F.3d 329, 337 (D.C. Cir. 1999) ("Where . . . discrimination is not limited to isolated incidents, but pervades a series or pattern of events which continue to within [45] days of the filing charge . . ., the filing is timely . . . regardless of when the first discriminatory incident occurred.") (quoting Laffey v. Northwest Airlines, 567 F.2d 429, 473 (D.C. Cir. 1976)). Claims dating back to the inception of the continuing violation may be pled. See EEOC v. Dial Corp., No. Civ. A. 99C3356, 2002 WL 1974072, at *4 (N.D. Ill. July 23, 2002) (allowing to proceed in the litigation any claims falling within the time period of the violation); see also Anderson, 180 F.3d at 337 n.10 (noting that plaintiffs may "recover for portions of the persistent process of illegal discrimination that antedated the limitations period.") (quoting McKenzie v. Sawyer, 684 F.2d 62, 72 (D.C. Cir. 1982)).

Plaintiffs argue that because Agent Turner timely filed an EEOC claim for non-promotion and plaintiffs have alleged the existence of a discriminatory policy both during and predating the statutory period, they are entitled to litigate non-promotion claims dating back to the inception of the discriminatory policy. Plaintiffs date the beginning of the violation to defendant's promotion policies in 1993 and, in any case, maintain that the defendant conceded a consistent policy, and thus a continuing violation, dating back to January 1, 1998. (See Pls.' Mot. for Reconsideration at 7-10.) The defendant counters that plaintiffs should not be able to plead claims predating 1999 on the theory of a continuing violation for several reasons. First, the defendant contends that Agent Turner's complaint of discrimination concerns only the bid and selection phase of the Service's promotion policy, and therefore, Agent Turner lacks standing to challenge the MPP given his high MPP score and cannot bring a class claim that challenges the MPP. (Id. at 7-9.) This argument is unpersuasive. The MPP is part and parcel of the promotion policy that governed the promotion decision that led to Agent Turner's complaint. Agent Turner's claimed injury is fairly traceable to that process, and he has standing to challenge it. Notably, the defendant cites no factually analogous case where a plaintiff alleged the existence of a discriminatory promotion policy and the plaintiff's challenge was limited to only a single phase of the alleged discriminatory policy. Moreover, the defendant's implied assertion that the phases of the promotion policy are mutually exclusive is unwarranted. By the defendant's own description of the policy, the MPP score could be taken into account in the bid and selection phase. (See Salinas Decl. ¶ 17 (noting that no instructions are provided to the selection committee on how to evaluate the candidates at this phase).) Although a candidate's score might be high enough for the candidate to reach the bid and selection phase, the score might not be high enough in relation to applicants competing at the bid and selection phase for the candidate to be truly competitive for a given vacancy. Agent Turner's non-promotion claim as pled sufficiently implicates the MPP to give him standing to challenge the policy.

Second, the defendant maintains that Agent Turner's complaint is not a pattern and practice case, but rather amounts to a series of claims of discrete acts of discrimination. Therefore, the defendant argues, National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), precludes application of the doctrine of continuing violations. However, plaintiffs have plainly and consistently challenged the promotion policies of the Secret Service. (See Second Amended Class Complaint ¶ 12 ("From the dates of their employment continuing up to and including the present time, plaintiffs and the plaintiff class have been discriminated against on the basis of their race, by the employment practices and policies of the Secret Service and by the manner in which these practices have been implemented.") (emphasis added); see also Compl. May 3, 2000 ¶ 47 ("From the dates of their employment, continuing up to and including the present time, plaintiffs and the plaintiff class have been discriminated against on the basis of their race, African-American, by the employment practices and policies of the Secret Service and by the manner in which these practices have been implemented.") (emphasis added). Plaintiffs are challenging the employment practices and policies of the Secret Service, and allege a pattern and practice claim. See Torres v. Mineta, Civil Action No. 04-015 (GK), 2005 WL 1139303, at *4 (D.D.C. May 13, 2005) (noting that plaintiffs were challenging a policy or practice of discrimination, not discrete acts, and that Morgan had no applicability).*fn3

Next, citing Taylor v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997) and recent district court cases relying on Taylor, defendant argues that the doctrine of continuing violations requires that a plaintiff be unaware of the alleged violation in order for the doctrine to save untimely claims. Taylor states that "[f]or statute of limitations purposes, a continuing violation is 'one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period[.]'" Id. Plaintiffs dispute that Taylor is the law of the circuit and counter with Anderson v. Zubieta, 180 F.3d 329, 337 n.11 (D.C. Cir. 1999), which held that the doctrine of continuing violations could be invoked notwithstanding the plaintiffs' knowledge of the nature of the challenged discriminatory policies. Plaintiffs here argue that Anderson and Taylor "squarely conflict" and urge the court to adopt Anderson because Anderson is the later decided case and adopting the rule in Taylor would collapse improperly the doctrine of continuing violations into the separate doctrine of equitable tolling. (See Pls.' Reply at 11-13 (citing Pleasant v. Allbaugh, 185 F. Supp. 2d 69, 76 (D.D.C. 2002) (noting the tension in the holdings of Taylor and Anderson).) Defendant does not acknowledge the tension between the holdings of Anderson and Taylor in its opposition to plaintiffs' motion for reconsideration and offered no opinion at oral argument on the issue.

Plaintiffs' argument that Anderson essentially overruled Taylor is unavailing because "one three-judge panel . . . does not have the authority to overrule another three-judge panel of the court [of appeals]. That power may be exercised only by the full court[.]" LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (citation omitted). Because Anderson and Taylor were both three-judge panel decisions, both cases must be deemed binding, notwithstanding the tension between their holdings, and they require an effort to reconcile them.*fn4

The doctrine of continuing violations is applicable where an actual violation of Title VII occurred during the statutory period and the current violation was either part of a series of related acts or caused by a discrimination policy or system. Palmer v. Kelly, 17 F.3d 1490 (D.C. Cir. 1994). In Taylor, three former employees sued their employer claiming it retaliated against them for making protected disclosures, in violation of the Resolution Trust Corporation Whistleblower Act, 12 U.S.C. ยง 1441a(q), and the First Amendment. Taylor, 132 F.3d at 759. In order to save otherwise untimely claims, two of the employees alleged a continuing violation which comprised a litany of retaliatory discriminatory acts, including reassignment, misdirected mail, poor telephone service, and ...


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