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COHEN v. AUSTIN

September 13, 1993

ROBERT N. COHEN, Plaintiff,
v.
RICHARD G. AUSTIN, administrator, GENERAL SERVICE ADMINISTRATION Defendant.



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 Joyner, J.

 September 13, 1993

 Presently before the Court is the summary judgment motion of defendant Richard G. Austin, Administrator of the General Service Administration ("GSA"), pursuant to Rule 56 of the Federal Rules of Civil Procedure. This matter stems from plaintiff's claims which arise under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiff alleges that GSA discriminated against him based on his religion and reprisal for engaging in protected activity by removing him from his position with GSA as a contract specialist on July 7, 1989 and denying his within-grade increase on December 15, 1988.

 In the motion for summary judgment, defendant alleges that this Court does not have jurisdiction to decide this case because plaintiff did not meet the minimum prima facie standards for alleging discrimination at the administrative level, and as such, plaintiff's claims of discrimination are frivolous. Defendant further asserts that the proper place for appealing such claims is with the Federal Circuit Court of Appeals, pursuant to 5 U.S.C. § 7703 (b)(1). Finally, defendant asserts that he is entitled to summary judgment because this Court cannot transfer this case to the Federal Circuit since plaintiff failed to file this civil action in a timely manner. However, for the reasons discussed more fully below, we find that defendant is not entitled to summary judgment.

 Standard

 In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The court is required to determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In making this determination, all reasonable inferences must be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 256, 106 S. Ct. at 2512. While the movant bears the initial burden of demonstrating an absence of genuine issues of material fact, the nonmovant must then establish the existence of each element of its case. J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)).

 Facts

 On December 15, 1988, plaintiff, a former GS-12 contract specialist with GSA, was denied a within-grade increase on the ground that he failed to achieve an acceptable level of competence in his position. Plaintiff requested reconsideration of the denial of the within-grade increase, but this request was denied by GSA on February 7, 1989.

 Plaintiff then appealed to the Merit Systems Protection Board ("MSPB"). In plaintiff's petition for appeal, plaintiff stated "RELIGIOUS DISCRIMINATION. See also answer to paragraph 21" *fn1" in response to the following question "If you believe you were discriminated against by the agency [GSA] because of either your race, color, religion, sex, national origin, marital status, political affiliation, handicapping condition, or age, indicate so and explain why you believe it to be true. You must indicate, by examples, how you were discriminated against." *fn2" In accordance with GSA appeal procedures, an administrative judge (or Presiding Officer) was assigned to decide the appeal. Nine administrative hearings were held between May 15, 1989 and June 15, 1989. After the final hearing, however, the administrative judge left the MSPB without rendering a decision in order to accept a position as an administrative judge with the Social Security Administration. Plaintiff's appeal was dismissed without prejudice on July 24, 1989, with permission to refile the appeal within twenty days.

 In the interim, plaintiff was removed from his position on July 7, 1989, after GSA previously gave notice to plaintiff that it was considering such action because of plaintiff's unacceptable performance on the job. Plaintiff filed a petition for appeal from the removal action on July 24, 1989. *fn3" He also refiled his appeal concerning the within-grade denial on August 10, 1989. Both appeals were then joined and the matter was assigned to another administrative judge.

 Administrative Judge Sandra J. Squire thereafter issued an Initial Decision on June 1, 1990 which consisted of 108 pages. The Decision upheld GSA's actions regarding the denial of the within-grade increase and the removal of plaintiff from his position. Further, Judge Squire found that plaintiff had failed to make out a prima facie case of religious discrimination *fn4" . Judge Squire also found that plaintiff did not establish his defense of reprisal, however, she analyzed his claim under the Whistleblower Act, 5 U.S.C. § 2302(b)(8), instead of under Title VII.

 Plaintiff thereafter appealed this decision to the MSPB. On May 28, 1991, the MSPB upheld GSA's actions. See Cohen v. General Services Admin., 48 M.S.P.R. 451 (1991). Regarding the discrimination and reprisal claims, the MSPB agreed with Judge Squire's credibility determinations and fact findings and refused to review the issues further. Id. at 459-60. Additionally, the MSPB found that Judge Squire had erred in denying defendant's motion to exclude any evidence of discrimination pertaining to plaintiff's claims. (GSA had previously brought this motion on the basis that plaintiff failed to provide examples of religious discrimination in his petition for appeal). The MSPB based its decision on the fact that plaintiff failed to provide examples of discrimination as required by the petition for appeal form itself and 5 C.F.R. § 1201.153(a) (1989). Id. at 461. However, the MSPB noted that the error was harmless because Judge Squire correctly concluded that plaintiff failed to establish his affirmative defenses of discrimination and reprisal. The MSPB then remanded the case back to Judge Squire for further credibility determinations on other issues unrelated to the discrimination claim.


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