in grade. The investigation revealed numerous sound management reasons for this decision which we need not reiterate here. Also, one of the other twelve persons who made the switch from technician to engineer without taking a reduction in grade was black. In short, plaintiff's only evidence of discrimination is the fact that he was treated differently and he is black. While we recognize under certain situations such evidence may be sufficient to support a charge of discrimination, the case at bar is not one of those. The agency in question has provided compelling evidence to fill the gap and negate any inference of discrimination in Richerson's case. The agency, based on this evidence, has decided against plaintiff's claims. We will not disturb that finding. Accordingly, defendant's motion for summary judgment as to the plaintiff Richerson will be granted.
Plaintiff Dais filed a complaint on July 21, 1972, and withdrew it on July 27, 1972, relying on an informal request for action to the base commanding officer. Later, on March 30, 1973, and again on May 7, 1973, he filed formal complaints alleging that he was discriminated against in the handling of his informal complaint. This complaint was investigated and a final decision of the agency was rendered on November 5, 1973. This decision was appealed by Mr. Dais to the U.S. Civil Service Commission. On March 19, 1974, the U.S. Civil Service Commission affirmed the decision of the agency. Mr. Dais intervened as a party plaintiff in the instant action with the filing of the amended complaint on June 13, 1973. Mr. Dais' complaint was not about a specific incident of discrimination that he was subjected to, but was a complaint with respect to the general treatment of himself and other blacks in the Navy Yard.
Initially defendant argues that at the time plaintiff Dais became a party to this action there was no final decision of the agency, thus no jurisdiction in this court to hear the claim of the plaintiff Dais. Plaintiff argues that since plaintiff Dais' initial complaint of July 21, 1972, was not acted on within 180 days that there is jurisdiction to hear this claim under 42 U.S.C. § 2000e-16(c). This argument specifically ignores the fact that on July 28, 1972, plaintiff Dais withdrew this complaint and wrote an informal request for action. Plaintiff had no complaint outstanding for more than 180 days nor a final decision of the agency at the time of the filing of this action. Thus, there is no basis for jurisdiction upon which plaintiff Dais can bring this claim, having failed to exhaust his administrative remedies at the time of the filing of the complaint. Plaintiff Dais has not argued, thus we need not consider, whether the later act of a final decision would vest this court with jurisdiction nunc pro tunc, when such jurisdiction obviously did not exist at the time of the filing of the complaint. Accordingly, as to plaintiff Dais, defendant's motion for summary judgment will also be granted.
AND NOW, this 18th day of April 18, 1975, upon consideration of defendant's motion for summary judgment and upon consideration of the briefs submitted in support and opposition of that motion, and for the reasons stated in the foregoing memorandum, it is hereby ORDERED that said motion is granted as to each of the named plaintiffs, and judgment is entered for the defendant and against the plaintiffs.
BY THE COURT:
James H. Gorbey, U.S. District Judge