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Adesalu v. Copps

March 31, 2009

JOHN ADESALU, PLAINTIFF,
v.
V. MICHAEL J. COPPS, ACTING CHAIRMAN, UNITED STATES FEDERAL COMMUNICATIONS COMMISSION, DEFENDANT.*FN1



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

Plaintiff John Adesalu is an economist who works for defendant, the Federal Communications Commission ("FCC"). He brings suit against his employer under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging that it has on various occasions discriminated against him on the basis of his race, color and national origin. The matter is before the Court on defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. After careful consideration of all the parties' papers, the relevant case law and the entire record in this case, the Court will grant defendant's motion.*fn2

I. BACKGROUND

Plaintiff, a black male of Nigerian origin, is employed as an Industry Economist in the FCC's Industry Analysis and Technology Division. See Mot., Statement of Material Facts For Which There Is No Genuine Issue ("Def. Facts") ¶ 1; Opp., Declaration of John Adesalu ("Adesalu Decl.") ¶¶ 1, 3. Plaintiff has been paid at the GS-13 grade level for the duration of his FCC tenure. See Def. Facts ¶¶ 3, 6; Adesalu Decl. ¶ 6. During that time, plaintiff has received three within-grade "step" increases from GS-13, step 5 to GS-13, step 8. See Def. Facts ¶ 14.

The GS-13 level is the full performance level of plaintiff's position, meaning that it is the highest grade level of his career ladder to which he may be promoted without competing with other individuals or receiving a non-competitive promotion through accretion of duties. See Def. Facts ¶¶ 3-4. Thus, to obtain promotion to the GS-14 level, plaintiff either had to (1) apply for a competitive vacancy and be selected, or (2) request a desk audit to determine whether he is performing work at the GS-14 level and, if so, request that he be promoted non-competitively. See Def. Facts ¶ 7. Plaintiff states that he applied for competitive FCC vacancies at the GS-14 and GS-14/15 levels on January 25, 2002, March 9, 2004, and July 15, 2004, and that he was not selected for any of them. See Adesalu Decl. ¶¶ 18-19. Defendant does not have records of the January 25, 2002 or July 5, 2004 applications, but confirms that plaintiff applied for a vacant position on March 9, 2004 and was not hired. See Mot., Ex. 3 (Declaration of Noelle M. Green) ("Green Decl.") ¶¶ 3-4. Plaintiff also states that in or about May 2004, one of his supervisors, Rodger Woock, made a promise that plaintiff could be promoted within two years depending on the quality of his work. See Adesalu Decl. ¶ 25. On December 2, 2005, Mr. Woock informed plaintiff that he would not be promoted. See id.

Plaintiff believes that the FCC did not promote him because he is black and Nigerian. See Compl. ¶ 4. He identifies other Industry Economists, all of whom are not black or Nigerian, who have been promoted during his employment at the FCC. See Adesalu Decl. ¶ 8. Plaintiff initiated contact with an Equal Employment Opportunity ("EEO") counselor on December 22, 2005. See Def. Facts ¶ 18. He filed a formal administrative complaint against the FCC on March 20, 2006, alleging that he had "not been promoted for over 10 years," and that he was "repeatedly denied promotions because [he was] black and because of [his] national origin." See id. ¶ 19. Plaintiff filed suit in this Court on December 4, 2007, alleging discrimination on the basis of race, color and national origin.

II. STANDARD OF REVIEW

Summary judgment may be granted if "the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248).

An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). He is required to provide evidence that would permit a reasonable jury to find in his favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 127 S.Ct. 1769, 1776 (2007) ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non- moving party, there is 'no genuine issue for trial.'") (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than "a scintilla of evidence to support his claims." Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).

III. DISCUSSION

A. Exhaustion of Administrative Remedies

Federal employees must exhaust their administrative remedies before filing suit under Title VII. See 42 U.S.C. § 2000e-16(c); Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); Pickett v. Potter, 571 F.Supp. 2d 66, 69 (D.D.C 2008). Employees who allege discrimination must consult with an agency EEO counselor before filing a written complaint with the agency accused of discriminatory practices. See 29 C.F.R. § 1614.105(a); 29 C.F.R. § 1614.106(a)-(c). A complainant "must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. § 1614.105(a)(1). The agency must then investigate the matter, after which the complainant may demand an immediate final decision from the agency or a hearing before an EEOC administrative judge. See 29 C.F.R. § 1614.106(e)(2); 29 C.F.R. § 1614.108(f). A complainant may file a civil action after receiving a final decision from the agency or after a complaint has been pending before the EEOC for at least 180 days. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407. "Complainants must timely exhaust these administrative remedies before bringing their claims to court." Bowden v. United States, 106 F.3d at 437; see Pickett v. Potter, 571 F.Supp. 2d at 69 ("Federal employees must exhaust their administrative remedies before filing suit under Title VII."). As this Court discussed in Coleman-Adebayo v. Leavitt, 326 F. Supp. 2d 132 (D.D.C. 2004), amended in part on other grounds, 400 F. Supp. 2d 257 (D.D.C. 2005), the Supreme Court's decision in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), established that "each discrete adverse employment action individually triggers Title VII's procedural requirements," so that a plaintiff alleging more than one discrete discriminatory action "must exhaust the administrative process [with respect to each allegedly discriminatory action] regardless of any relationship that may exist between those discrete claims and any others." Coleman-Adebayo v. Leavitt, 326 F. Supp. 2d at 137-38 (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 114).

Plaintiff identifies four allegedly discriminatory employment decisions by the FCC - three formal rejections of applications that he made for competitive Industry Economist vacancies at the GS-14 and GS-14/15 levels on January 25, 2002, March 9, 2004 and July 15, 2004, see Adesalu Decl. ¶ 18, and one informal decision, when Mr. Woock allegedly retracted a promise of promotion on December 2, 2005. See id. ¶ 25.*fn3 Defendants argue that the first three decisions, the formal rejections of plaintiff's applications for promotion, are time-barred because plaintiff did not timely contact an EEO counselor. In an attempt to maintain these claims as viable, plaintiff argues that they form one continuing violation of Title VII. Under the theory advanced by plaintiff, he may recover for allegedly discriminatory conduct falling outside the applicable charging period if that conduct forms part of one indivisible discriminatory ...


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