444 F.Supp. 573 (D.D.C. 1978), Civ. A. 77-0360, DeMedina v. Reinhardt

Docket Nº:Civ. A. 77-0360
Citation:444 F.Supp. 573
Party Name:DeMedina v. Reinhardt
Case Date:January 27, 1978
Court:United States District Courts, District of Columbia
 
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Page 573

444 F.Supp. 573 (D.D.C. 1978)

Luba S. Kowalyszyn DE MEDINA, Plaintiff,

v.

John E. REINHARDT, Defendant.

Civ. A. No. 77-0360.

United States District Court, District of Columbia.

Jan. 27, 1978

Page 574

G. Alexander Park, Washington, D. C., for plaintiff.

Earl J. Silbert, U. S. Atty., Robert N. Ford, Michael I. Gewirtz, Asst. U. S. Attys., Washington, D. C., for defendant.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

Plaintiff in this case alleges that she was denied employment at the United States Information Agency (USIA) on account of her sex and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. s 2000e-16. She also alleges that she was denied employment in violation of Title VII in retaliation for her husband's anti-discrimination activities on behalf of minority group members at the USIA. Plaintiff seeks a declaratory judgment, back pay and retroactive promotion, and injunctive relief. This case is now before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment. For the reasons hereinafter stated, the Court will grant defendant's motion to dismiss with respect to all plaintiff's claims of employment discrimination except her claim arising out of her application for employment in April 1976, and, with respect to this remaining claim, the Court will deny defendant's motion for summary judgment.

I. BACKGROUND

Between March 1971 and January 1974, plaintiff was an employee of the USIA in the Ukrainian Service of the USSR Division and then in the Latin American Division of the Voice of America (VOA). On January 4, 1974, plaintiff resigned her position for health reasons.

In the summer of 1975, plaintiff reapplied for a position in the News Division of VOA, but was denied employment. According to defendant, plaintiff was not given a position because of her unsatisfactory performance on a writing test reviewed by several editors in the Division. Plaintiff did not at that time file any complaint of discrimination. Later, in April 1976, plaintiff again sought a position in the News Division. Her request to retake the writing test, however, was denied on or about April 29, 1976. Thereafter, on May 10, 1976, plaintiff filed

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an informal charge of discrimination, which was followed on June 22, 1976, by a formal complaint to the agency.

The Equal Employment Opportunity (EEO) Office of the USIA then commenced an investigation of plaintiff's administrative complaint. This investigation was concluded on December 13, 1976, and the USIA, on February 4, 1977, issued its final decision, which found no sex or national origin discrimination and no retaliation for her husband's activities on behalf of minority groups. Plaintiff then filed this suit on March 3, 1977.

In the amended complaint herein, which was filed on July 7, 1977, plaintiff alleges that she applied for and was denied a number of positions with various divisions of the USIA. These applications were allegedly made both before and after the April 29, 1976, incident with the News Division of the VOA, which was the alleged discriminatory act immediately preceding the filing of the administrative complaint that culminated in the filing of this suit. In chronological order, the following are the other positions for which plaintiff allegedly applied: 1

II. DEFENDANT'S MOTION

Defendant's motion seeks dismissal of all plaintiff's claims with respect to those applications for employment made prior to April 1976 (Applications (1)-(6), supra) on the ground that plaintiff failed to file a timely charge/complaint with the USIA and is thus barred from seeking relief with respect to these employment denials. Defendant's motion further seeks dismissal of all plaintiff's claims with respect to those applications for employment made subsequent to April 1976 (Applications (7)-(13), supra) on the ground that plaintiff never filed a charge/complaint with the USIA concerning these applications and thus failed to exhaust her administrative remedies. Defendant's motion also seeks dismissal of plaintiff's claims based on retaliation for her husband's anti-discrimination activities at the USIA. Finally, defendant seeks summary judgment with respect to the claims arising from a number of the employment applications made by the plaintiff, including the one claim which defendant admits was timely and properly filed with the USIA the April 1976 application for a position with the News Division of VOA. With respect to the April 1976 denial of plaintiff's application for a position with the News Division, defendant contends that he is entitled to summary judgment because plaintiff's rejection was solely for a legitimate, nondiscriminatory reason her previous unsatisfactory performance on the writing test.

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III. DISCUSSION

A. The Court Will Dismiss Plaintiff's Claims Arising Out of Her Pre-April 1976 Employment Applications for Lack of Subject Matter Jurisdiction Because These Claims Were Not Timely Filed with the Agency as Required by the Pertinent Civil Service Regulations.

' [1] It is now established that '(t)imely filing is a prerequisite to the maintenance of a Title VII action.' " Cates v. Trans World Airlines, Inc., 561 F.2d 1064, 1067 n. 3 (2d Cir. 1977), quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n. 4, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). This jurisdictional principle is equally applicable to suits brought by private sector employees and those brought by federal employees such as the plaintiff herein. See Ettinger v. Johnson, 518 F.2d 648 (3d Cir. 1975); Briscoe v. Director, Administrative Office of the United States Courts, C.A.No. 76-628, Slip op. at 5-6 (D.D.C.1977). Thus, this Court has jurisdiction to grant plaintiff relief only on those claims alleged by plaintiff that were timely filed.

The pertinent regulations promulgated by the Civil Service Commission (CSC) pursuant to 42 U.S.C. s 2000e-16(b) require a federal employee, prior to maintaining a civil action, to file a charge of discrimination with the defendant-agency within 30 days of "the matter causing him to believe he had been discriminated against." 5 C.F.R. s 713.214(a)(1)(i) (1977). In the present case, it is undisputed that the only discriminatory action alleged to have been taken within the 30 days prior to plaintiff's initial complaint to the USIA on May 10, 1976, was the News Division's rejection of plaintiff's April 1976 employment application. Thus, plaintiff would normally be barred from proceeding on her claims arising from pre-April 1976 employment applications for which charges were not filed with the USIA within the requisite 30-day period.

Plaintiff propounds two theories which she contends except her from the impact of 5 C.F.R. s 713.214(a)(1)(i) (1977). First, she contends that the agency's course of conduct in denying her employment is a "continuing" violation of Title VII which excuses her failure to file a timely charge after each alleged incident of discrimination. Second, she contends that since the complaint she filed with the USIA in May 1976 alleged a consistent course of discriminatory conduct between 1974 and 1976, and since the agency accepted this complaint and in fact investigated her allegations with respect to her pre-April 1976 rejections, the agency in effect waived the time limits of 5 C.F.R. s 713.214(a)(1)(i) (1977). Accordingly, she argues, the Court should not bar...

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