The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff, Barbara Felder ("Plaintiff") filed the Complaint in this action as Personal Representative of the Estate of her late husband, Marvin Felder ("Mr. Felder"), against Defendant Mike Johanns, in his official capacity as Secretary of the United States Department of Agriculture ("USDA"). Plaintiff's Complaint alleges that the Animal and Plant Health Inspection Service ("APHIS") and its operating unit, International Services ("IS"), discriminated against Mr. Felder on account of his race and in retaliation for his prior protected EEOC activity, by failing to promote him while promoting a similarly situated IS employee. In 2002, Mr. Felder and a fellow USDA/APHIS employee, Alester van Simmons, prevailed in a jury trial in a race discrimination case against Defendant (hereinafter the "2002 Case"), and were subsequently granted equitable relief, including reinstatement to vacancies in IS. Plaintiff alleges that Defendant carried out its obligation to reinstate Mr. Felder and Mr. Simmons, but subsequently engaged in a separate act of discrimination by promoting Mr. Simmons while failing to promote Mr. Felder. Defendant has moved to dismiss Plaintiff's Complaint, arguing that Plaintiff's claims should be brought, if at all, in an action before Judge Gladys Kessler, the Judge in the 2002 Case, because it relates to equitable relief provided by Defendant as a result of the 2002 Case. Alternatively, Defendant argues that Plaintiff's Complaint should be dismissed either because Plaintiff failed to exhaust her administrative remedies or because Defendant had a legitimate, non-discriminatory reason for promoting Mr. Simmons while not promoting Mr. Felder. Plaintiff opposes Defendant's Motion and has also filed a Motion Pursuant to Rule 56(f) for Continuance to Obtain Discovery.
The Court has conducted a searching review of Defendant's Motion, Plaintiff's Opposition and Rule 56(f) Motion, and Defendant's Reply, the exhibits attached thereto, the relevant case law, and the entire record herein. The Court has also consulted with Judge Kessler regarding the relationship between the instant case and the 2002 Case. Based on the foregoing, the Court declines to dismiss this action on the grounds that it should be brought before Judge Kessler. Furthermore, the Court concludes that it is premature to resolve the remainder of Defendant's Motion to Dismiss or for Summary Judgment, as discovery has not yet been conducted in this action and it appears that genuine questions of material fact may exist. The Court shall therefore deny the remainder of Defendant's Motion without prejudice and shall grant Plaintiff's Motion Pursuant to Rule 56(f) for Continuance to Obtain Discovery.
A. Allegations Set Forth in Plaintiff's Complaint
Plaintiff's Complaint alleges that Mr. Felder, an African-American male, was employed by USDA/APHIS from 1978 until his death on March 10, 2005, at which point he was 53 years old. Compl. ¶6. On July 7, 1999, Mr. Felder and a fellow USDA/APHIS employee, Alester Van Simmons, filed a civil action in the United States District Court for the District of Columbia captioned Felder v. Glickman, Civil Action No. 99-1860 (the "2002 Case"), in which they alleged that Defendant intentionally discriminated against them on the basis of their race by refusing to select them from the roster of qualified candidates for management-level vacancies at IS. Id. ¶¶ 7-8. The 2002 Case was tried before Judge Gladys Kessler, and the jury returned a verdict in favor of Mr. Felder and Mr. Simmons. Id. ¶ 8. In an Order filed February 4, 2002, Judge Kessler granted-in-part Mr. Felder and Mr. Simmons' motion for equitable relief, awarding them "reinstatement to the first opening or vacancy which becomes available in IS, back pay to the dates on which the first and second vacancies in IS were filled after creation of the roster on which each Plaintiff was placed . . . and front pay." Id.; Felder v. Glickman, Civil Action No. 99-1860, Order (D.D.C. Feb. 4, 2002). According to Plaintiff, all parties to the 2002 Case later agreed that the Mr. Felder and Mr. Simmons' instatements in IS should be retroactive to 2002. Compl. ¶ 8.
According to Plaintiff, APHIS/IS complied with Judge Kessler's February 4, 2002 Order by "placing both Mr. Felder and Mr. Simmons in the first available vacant positions in IS, at FP levels consistent with their respective then current grades and areas of expertise, made retroactive to February 14, 1997." Id. ¶ 9. Mr. Felder was transferred to IS in January 2004 and Mr. Simmons was transferred to IS in September 2003. Id. ¶¶ 10-11. According to Plaintiff, Defendant "correctly, and in full compliance with Judge Kessler's order of instatement, treated Messrs. Felder and Simmons on paper as enrolled in IS at the same functionally-equivalent FP level, in terms of grade and salary, as they had occupied and were receiving on February 14, 1997 . . . ." Id. ¶ 12. However, upon transferring into IS, Mr. Simmons was informed that he had received a "paper promotion" between his retroactive instatement date of February 14, 1997 and the date that he reported to work in IS, September 21, 2003. Id. ¶ 13. Defendant declined to give Mr. Felder a similar "paper promotion." Id. ¶ 14.
Upon learning of this purported discrepancy, Mr. Felder initiated the EEO complaint process, contacting Defendant's EEO counselor on November 4, 2003, and filing a formal charge of race-based discrimination on December 19, 2003. Id. ¶ 15. According to Plaintiff, Mr. Felder's EEO Complaint alleged that USDA/APHIS' failure to promote him while promoting Mr. Simmons also constituted reprisal for his prior EEO activity, "specifically for serving as the 'ring leader' in successfully pursuing the discrimination claim" in the 2002 Case. Id. USDA moved to dismiss Mr. Felder's EEO complaint, alleging that it was a collateral attack on Judge Kessler's February 4, 2002 Order. Id. ¶ 17. On March 10, 2005, while that motion was pending, Mr. Felder passed away. Id. ¶ 18. His widow, Barbara Felder, elected to continue to pursue his discrimination complaint as personal representative of his estate. Id. On June 10, 2005, the EEOC Administrative Judge granted USDA's motion to dismiss and USDA dismissed Mr. Felder's EEOC complaint. Id. ¶ 19. Plaintiff subsequently appealed the dismissal of Mr. Felder's EEOC complaint, and the EEOC granted Plaintiff's appeal and vacated the order dismissing Mr. Felder's EEOC complaint. Id. ¶¶ 20-21. USDA then filed a request for reconsideration, which was rejected by the EEOC by decision dated March 16, 2006, which also notified Plaintiff of her right to file a civil action in the United States District Court. Id. ¶ 22.
Plaintiff filed her Complaint in this action on May 15, 2006, asserting two claims for relief. First, Plaintiff alleges that Defendant intentionally discriminated against Mr. Felder by subjecting him to disparate treatment on the basis of his race by failing to promote him while promoting Mr. Simmons. Id. ¶¶ 23-27. Second, Plaintiff alleges that Defendant's failure to promote Mr. Felder, and continuous refusal of Mr. Felder's request to be treated the same as Mr. Simmons with respect to his "paper promotion" constituted intentional discrimination and retaliation against Mr. Felder for filing the 2002 Case and for participating in that case. Id. ¶¶ 28-31.
B. Additional Factual Information Included in Defendant's Motion to Dismiss or for Summary Judgment
Defendant filed his Motion to Dismiss or for Summary Judgment on September 8, 2006. On October 6, 2006, Plaintiff filed her Opposition to Defendant's Motion, as well as a Motion Pursuant to Rule 56(f) for Continuance to Obtain Discovery.*fn1 Defendant filed his Reply on November 21, 2006. Defendant's filings in connection with his Motion to Dismiss or for Summary Judgment provide additional information as to Defendant's allegedly discriminatory and retaliatory act, i.e., refusing to give Mr. Felder a "paper promotion" while giving such a promotion to Mr. Simmons.
Specifically, Defendant asserts that, following Judge Kessler's February 4, 2002 Order, USDA/APHIS assigned Mr. Felder to a position in the foreign service at the FP-2 level (the equivalent to a GS-14 in the civil service), and assigned Mr. Simmons to a position in the foreign service at the FP-3 level (the equivalent to a GS-13 in the civil service). Def.'s Rule 7(h) Stmt. of Mat. Facts Not in Dispute (hereinafter "Def.'s Stmt.") ¶¶ 6-9. In addition, however, Defendant explains the process by which USDA determined the appropriate FP levels at which to bring Mr. Felder and Mr. Simmons into the Foreign Service. According to Defendant, "[t]o comply with Judge Kessler's equitable relief Order, the agency had to determine what FP level the two plaintiffs would likely be occupying in 2003 had they been selected back in 1997." Id. ¶ 10. At the time that Mr. Felder and Mr. Simmons applied to the Foreign Service in 1997, Mr. Simmons was on the FS-436-4 (GS-12/FP-4) roster, while Mr. Felder himself was on the FS-436-3 (GS-13/FP-3) roster. Id. ¶¶ 12, 14. Therefore, according to Defendant, in attempting to comply with Judge Kessler's February 4, 2002 Order, USDA identified a comparitor for Mr. Simmons and determined that, because that individual received a promotion in the five-year period between 1997 and 2002, Mr. Simmons had to be brought in to the Foreign Service at the FP-3 level. Id. ¶ 13.
With respect to Mr. Felder, Defendant asserts that "[s]ince 1994, APHIS had operated under an internal policy of brining individuals into the Foreign Service career system at a level no higher than the FP-3 (GS-13 level)." Id. ¶ 15. However, "[d]espite this internal policy, the determination was made to bring Mr. Felder into the system at the FP-2 level." Id. ¶ 16. According to Defendant, USDA further concluded that "a person first entering onto duty in the Foreign Service in 1997 at the FP-2 level would not likely have obtained an FP-1 position by 2002" because individuals receiving such promotions had ...