The opinion of the court was delivered by: DITTER
Plaintiff Darius Keene brought this Title VII action pursuant to 42 U.S.C. § 2000e-16 alleging employment discrimination on account of his race.
Presently before the court is defendants' motion for summary judgment. Defendants assert that this action must be dismissed because plaintiff failed to file his administrative claim timely. For the reasons that follow, summary judgment will be entered in favor of defendants.
Darius Keene is a black male who was employed as an urban planner with the Environmental Protection Agency (EPA) in Philadelphia at the time of the alleged discriminatory actions. On July 26, 1976, plaintiff received a notice from his supervisor, Andrea Perry, that his within-grade increase would be withheld because his job performance was not at an acceptable level of competence. This notice stated that the decision had been based in part upon a conversation Ms. Perry had with plaintiff's previous supervisor, Robert Blanco. Keene had filed Equal Employment Opportunity (EEO) complaints involving Blanco in 1973 and 1976, with the latter complaint withdrawn by plaintiff after he accepted a transfer to a new division within the EPA. (Complaint paras. 14, 16). Upon receiving this July 26, 1976, notice, plaintiff contacted an EEO counselor, Julia Pendleton, in an effort to resolve the issue informally.
Pendleton conducted an investigation, but these efforts to resolve the matter proved unsuccessful. After her investigation was completed, she issued a notice of final interview pursuant to 29 C.F.R. § 1613.213(a) on September 22, 1976.
This final interview notice informed plaintiff of his responsibility to file a written discrimination complaint within 21 days.
Unfortunately, plaintiff was absent from work from Monday, September 27, 1976, until January 5, 1977, due to a back injury. Upon his return to work, Keene requested that his denial of within-grade increase be reconsidered. See Exhibit J of Plaintiff's Supplemental Memorandum of Law (Doc. No. 15). This request was denied on January 20, 1977, by Daniel Snyder, the regional administrator of the EPA. Due to a recurrence of his back injury, Keene was again absent from work from January 31, 1977, to March 24, 1977. Upon his return, Keene contacted an EEO counselor on March 28, 1977, regarding the July, 1976, denial of within-grade increase, and the January, 1977, denial of his request for reconsideration. In his March, 1977, informal complaint, Keene alleged that these decisions were improperly influenced by Blanco's actions in discussing plaintiff's previous work performance with his present supervisor, Ms. Perry. Plaintiff asserted that Blanco's conduct was in retaliation for his earlier EEO complaints filed against Blanco. The EEO counselor conducted an informal investigation and a notice of final interview was issued on April 18, 1977. Keene filed his formal EEO complaint on May 2, 1977. In this complaint, plaintiff asserted that Blanco's actions were "inappropriate and vindictive." He sought the reinstatement of his 1973 and 1976 EEO complaints and the right "to serve as a professional and in a manner commensurate with [his] education and expertise." This complaint was rejected by the EPA in a final agency decision on May 23, 1979, because it had not been presented to an EEO counselor within 30 days of the date of the matter complained of as required by 29 C.F.R. § 1613.214(a)(1)(i). On appeal to the EEOC, the final agency decision was affirmed.
This action followed.
Prior to filing a Title VII complaint in federal court, an aggrieved federal employee must satisfy certain administrative prerequisites. Unlike private sector Title VII complainants who may initiate the process by filing a charge directly with the EEOC, federal employees must complain initially to the agency alleged to have discriminated against them. The regulations require the employee to bring his complaint to the attention of one of the agency's EEO counselors within 30 days of the alleged discriminatory act. The EEO counselor then must investigate the matter and attempt to resolve the issue informally. The EEO counselor must "insofar as practicable" conduct a final interview with the employee within 21 days after the matter was brought to the attention of the EEO counselor. 29 C.F.R. § 1613.213(a). If the matter is not resolved informally, the complainant must file a formal written complaint with the agency within 15 days of the final interview. After the agency's investigation, if relief acceptable to the employee is not offered, he may request an evidentiary hearing before an examiner who is not employed by the agency. If the employee remains dissatisfied with the final agency decision, he may appeal to the EEOC or, in certain cases, to the Merit Systems Protection Board. The employee, however, may proceed to federal court without pursuing administrative relief beyond the agency level. 29 C.F.R. §§ 1613.201-.283. See B. Schlei & P. Grossman, Employment Discrimination Law 1186-1215 (1983). The regulations, however, also provide that the time limits may be extended where the employee shows he was not notified and was not otherwise aware of them, or was prevented by circumstances beyond his control from submitting the matter timely. 29 C.F.R. § 1613.214(a)(4).
The issues in the present case are whether plaintiff filed his administrative complaints timely, and, if not, whether his failure to do so should be excused because of any extenuating circumstances. To resolve these questions, it is necessary to identify first the alleged discriminatory matter. See Delaware State College v. Ricks, 449 U.S. 250, 257, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980). It must then be determined whether Keene presented this matter to the agency for consideration within the applicable time limits.
Identifying the precise discrimination of which plaintiff complains has not been eased by the numerous administrative actions plaintiff has initiated. The record reveals he has filed no fewer than seven EEO complaints and at least three internal agency appeals of personnel actions. He has also commenced another civil action, C.A. No. 81-2710 (E.D. Pa.), which has been consolidated with the present action. Plaintiff agrees that the only EEO complaint at issue here is the one filed May 2, 1977. Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment at 15 (Doc. No. 11). This formal complaint, when read in conjunction with his informal complaints submitted August, 1976, and March, 1977, reveals the matter causing Keene to believe he was discriminated against was the fact that Blanco, his former supervisor, advised his current supervisor that his work was unsatisfactory when plaintiff was under the former's supervision. He contends this was in retaliation for the previous EEO complaints he had filed against Blanco.
Although the net effect of this alleged retaliation was the denial of plaintiff's within-grade increase which became effective September 26, 1976, neither this personnel action nor this date was ever mentioned in the May 2, 1977, EEO complaint. Accordingly, the actual denial of the within-grade increase cannot be considered the discrimination about which complaint is made.
Plaintiff first contacted his EEO counselor about Blanco's retaliation in August, 1976. While the exact date of this contact is not clear, see note 2 supra, it was accepted as timely by the agency. The final interview was held on September 22, 1976, and under 29 C.F.R. § 1614.214(a)(1)(ii), Keene was required to file his formal EEO complaint within 15 days. This complaint, however, was not filed until May 2, 1977, and was therefore untimely.
I have considered the various arguments advanced by plaintiff to excuse the tardy filing, but find them unpersuasive. Plaintiff relies primarily upon the continuing violation theory through which an aggrieved person will be considered to have a timely complaint by showing that a discriminatory practice is continuing, even though the complaint was filed after the expiration of the applicable limitation period. In such a case, a Title VII complaint may be heard if filed within the specified number of days after the last occurrence of an instance of the continuing discriminatory policy. See Bronze Shields, Inc. v. New Jersey Department of Civil Service, 667 F.2d 1074, 1080-81 (3d Cir.1981), cert. denied, 458 U.S. 1122, 102 S. Ct. 3510, 73 L. Ed. 2d 1384 (1982); Acha v. Beame, 570 F.2d 57, 65 (2d Cir. 1978). See generally Comment, The Continuing Violation Theory of Title VII After United Air Lines, Inc. v. Evans, 31 Hastings L.J. 929 (1980). Plaintiff asserts that the January 20, 1977, denial by the regional EPA administrator of his request for reconsideration of the denial of within-grade increase constitutes a continuing violation because it contained a reference to and was partially based upon the objectionable statement by Blanco. If this theory was accepted, plaintiff's March 28, 1977, contact with his EEO counselor might have been timely.
The controlling precepts, however, foreclose the consideration of this action as a continuing violation. The Supreme Court first addressed this theory in United Air Lines, Inc. v. Evans, 431 U.S. 553, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977). The plaintiff in Evans was a female flight attendant whose employment was terminated in 1968 by United in accordance with a subsequently-invalidated no-marriage policy. After she was rehired in 1972, she brought a Title VII action on account of United's refusal to recognize any seniority for her prior service. The Court rejected her claim that this refusal to grant her seniority credit constituted a continuing violation and held her claim to be barred by her failure to file a discrimination charge within 90 days of her separation from employment in 1968. The Court stated, "Respondent emphasizes the fact that she has alleged a continuing violation. United's seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists." Id. at 558 (emphasis in original).
The Court reiterated the importance of focusing upon present violations, rather than present effects of past acts, in Delaware State College v. Ricks, 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980). In Ricks, the plaintiff was denied tenure on March 13, 1974. Like many other colleges and universities, Delaware State College offers faculty members who are denied tenure one year terminal contracts, rather than immediate discharge. On June 26, 1974, Ricks was offered and accepted this terminal contract. In the meanwhile, he had filed a grievance with the school regarding its tenure decision. The district court held the filing period began to run on June 26, 1974, when plaintiff accepted his terminal contract and dismissed the complaint because of his failure to file within 180 days of that date.
The Supreme Court affirmed, and in so doing, rejected plaintiff's arguments that the filing period did not begin until either the expiration of the one year contract or the date of the denial of his grievance. The Court stated that the limitation period started at the time the tenure decision was made and communicated to Ricks. Id. at 258. "That is so even though one of the effects of the denial of tenure -- the eventual loss of a teaching position -- did not occur until later . . . The proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." Id. (emphasis in original). The Court also rejected the contention that the pendency of Rick's grievance tolled the running of the limitation period. The Court stressed that the grievance procedure was merely a remedy for a prior decision, not an opportunity to influence the decision before it was made. Id. at 261.
Returning to the present case, it is clear that under Evans and Ricks, the January 20, 1977, denial of plaintiff's request for reconsideration cannot be considered a continuing violation. The matter complained of -- the alleged improper statement by Blanco to Perry during the course of plaintiff's evaluation for a within-grade increase -- was known to plaintiff when he received the notice of denial of his within-grade increase on July 26, 1976. The fact that this statement had an effect upon the denial of the request for reconsideration is of no consequence. Moreover, the reconsideration requested in the present case is similar to the grievance in Ricks. The request for reconsideration was a remedy for a prior decision, rather than an opportunity to influence the decision before it is made. As such, it may not be used to toll the limitation period. See Ricks, 449 U.S. at 261.
Because the January 20, 1977, denial of plaintiff's request for reconsideration cannot offer grounds for making his March 28, 1977, contact with his EEO counselor timely, I must consider Keene's alternative argument that his timely contact with his counselor in August, 1976, provides a basis to treat his May 2, 1977, formal EEO complaint as properly filed. Although he did not file this complaint within 15 days after his final interview as required by 29 C.F.R. § 1613.214(a)(1)(ii), plaintiff argues that the late filing should be excused because the agency did not conduct the final interview within 21 days after the matter was brought to the attention of the EEO counselor as provided by 29 C.F.R. § 1613.213(a). Plaintiff's contention cannot succeed. Contrary to his assertion, this is not a situation where the government has failed to comply with mandatory regulations. The provision at issue says only that the final interview should be conducted "insofar as is practicable" within 21 days after the complainant contacts an EEO counselor. Moreover, to accept plaintiff's claim would run counter to the congressional intent to limit an employer's liability for stale claims. "The limitations periods, while guaranteeing the protection of the ...