James v. England

Decision Date27 August 2004
Docket NumberNo. CIV.A. 03-1835RBW.,CIV.A. 03-1835RBW.
Citation332 F.Supp.2d 239
PartiesSandra L. JAMES, et al., Plaintiffs, v. Gordon R. ENGLAND, Secretary of the Navy Defendant.
CourtU.S. District Court — District of Columbia

Joseph D. Gebhardt, Gebhardt & Associates, LLP, Washington, DC, for Plaintiffs.

Uldric L. Fiore, Jr., U.S. Attorney's Office, Civil Division, Washington, DC, for Defendant.

MEMORANDUM OPINION

WALTON, District Judge.

The plaintiffs bring this class action against the defendant, Gordon R. England, Secretary of the Navy, in his official capacity only, alleging "unlawful gender, race, age and disability discrimination in employment" pursuant to Title VII of the Civil Rights Act of 1954. Class Action Complaint ("Compl.") ¶ 1. Currently before this Court are (1) the Defendant's Motion to Dismiss or, in the Alternative for Summary Judgment ("Def.'s Mot.") and (2) the Plaintiffs' Opposition to Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment ("Plfs' Opp.'n").1 For the foregoing reasons, this Court will deny in part and grant in part the defendant's motion.

I. Factual Background

The merits of the plaintiffs' suit are not relevant to the questions currently before this Court at this time. Therefore, the facts will be discussed only to the extent necessary to resolve the pending motion. The Naval Sea Systems Command ("NAVSEA") was located in Arlington, Virginia, until July 19, 2001, when it moved to the Navy Yard in Washington, D.C. Def.'s Mot. at 10. According to the plaintiffs, the NAVSEA wanted to "eliminate [their] predominately female, heavily African American secretarial workforce. Many of the NAVSEA secretaries were over the age of 40, and a noticeable number were disabled employees." Compl. ¶ 29. In an effort to save money, the NAVSEA conducted an A-76 contracting-out study in April 1999. The study focused on 324 administrative and clerical positions, including the positions held by the plaintiffs in this case. The study concluded that the administrative and clerical positions should remain in-house, as opposed to being contracted out. Id. ¶¶ 33, 35, 43. As a result of the A-76 study, a reorganization was put into effect utilizing a Reduction in Force ("RIF") procedure. Id. ¶ 43. Thus, on March 22, 2001, 138 administrative and clerical employees received notice advising them that, under the RIF, they would be separated from their current positions on June 30, 2001. Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss, or in the Alternative, For Summary Judgment ("Def.'s Mem.") at 7. Each affected employee was also notified that, effective July 1, 2001, they were being offered a new position in the reorganization. Defendant's Statement of Material Facts To Which There is No Genuine Dispute ("Def.'s Stmt.") at 3-4. These positions, however, could be at a lower grade than their current position, but if the employees met eligibility requirements, they would receive grade retention for up to two years. Id. at 4.

Between May 30, 2001 and July 20, 2001, the named plaintiffs, employees of the NAVSEA, filed individual, informal complaints with Equal Employment Opportunity ("EEO") counselors, alleging that they had been discriminated against when they received a "Specific Reduction-in-Force notification and an offer to Vacant Position in Lieu of Separation" on March 22, 2001. Plfs' Opp.'n at 4. Formal individual complaints were then filed between September 6, 2001 and September 20, 2001. Def.'s Stmt. at 5. On August 29, 2001, the individual complainants filed a motion for class certification with the Equal Employment Opportunity Commission ("EEOC"), Defendant's Exhibit ("Def.'s Ex.") 13, and on November 13, 2001, a formal administrative class complaint was filed. Def.'s Ex. 14. On February 26, 2003, an EEOC Administrative Law Judge ("ALJ") dismissed the class complaint for lack of jurisdiction and directed the defendant to process the class complaint under 29 C.F.R. § 1614.302(d) as individual complaints. Def.'s Ex. 15. The Final Agency Determination ("FAD") dismissing the class complaint was dated March 21, 2003 and received by the class agent on March 27, 2003 and her counsel on March 28, 2003. Def.'s Ex. 16. The FAD informed the plaintiffs of their various rights of appeal, including appealing to the EEOC or filing a claim in federal district court. Id.

The defendant asserts three theories under which his motion should be granted: (1) the plaintiffs have failed to exhaust their administrative remedies; (2) the plaintiffs' complaint is untimely as a class complaint; and (3) venue in the District of Columbia is improper. Each argument will be addressed separately.

II. Standard of Review

Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss should only be granted if the "plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). This Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiffs and must grant the plaintiffs the benefit of all inferences that can be derived from the alleged facts. Conley, 355 U.S. at 45-46, 78 S.Ct. 99; Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). However, the Court need not accept inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal, 16 F.3d at 1276. In deciding whether to dismiss a claim under Rule 12(b)(6), the Court can only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference into the complaint, and matters about which the Court may take judicial notice. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C.Cir.1997).

III. Legal Analysis
(A) Did the Plaintiffs Exhaust Their Administrative Remedies?

"Prior to instituting a court action under Title VII, a plaintiff alleging discrimination in federal employment must proceed before the agency charged with discrimination. 42 U.S.C. § 2000e-16(c)." Bayer v. U.S. Dep't of Treasury, 956 F.2d 330, 332 (D.C.Cir.1992) (citing Brown v. General Services Admin., 425 U.S. 820, 832-33, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Kizas v. Webster, 707 F.2d 524, 543 (D.C.Cir.1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984)). This exhaustion requirement mandates that the plaintiffs file a timely administrative claim. Kizas, 707 F.2d at 543. The exhaustion requirement is also a prerequisite for claims of age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 633a. Chennareddy v. Bowsher, 935 F.2d 315, 317 (D.C.Cir.1991). EEOC regulations require that an employee who believes that he or she has been discriminated against by a federal agency "must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1) (emphasis added). "This timeliness requirement operates like a statute of limitations and applies equally to the seeking of informal counseling — which is a prerequisite to bringing a formal charge — and the actual bringing of formal charges upon the completion of counseling." Singleton v. Harkin, 1996 WL 33322370, at *3 (D.D.C.1996). The counselor is required to give notice to the allegedly aggrieved person of the final interview, after which a federal employee is required to bring a formal action within 15 days. 29 C.F.R. § 1614.106(b). While this timing requirement is subject to equitable tolling, such tolling is only proper for good cause. Currier v. Radio Free Europe, 159 F.3d 1363, 1367 (D.C.Cir.1998); Bowden v. United States, 106 F.3d 433, 438 (D.C.Cir.1997).

Although the District of Columbia Circuit

has not exhaustively defined what constitutes an adverse personnel action under Title VII, "courts applying Title VII have consistently focused on ultimate employment decision[s] such as hiring, granting leave, promoting, and compensating ... [and not] interlocutory or intermediate decisions having no immediate effect upon employment decisions...." An employment decision does not rise to the level of an actionable adverse action, however, unless there is a tangible change in the duties or working conditions constituting a material employment disadvantage.

Kilpatrick v. Riley, 98 F.Supp.2d 9, 20-21 (D.D.C.2000) (internal citations omitted).

As an initial matter, this Court must decide what was the alleged discriminatory act or personnel action that the plaintiffs challenge. The defendant argues that the plaintiffs' complaint alleges discrimination when the "NAVSEA managers `targeted' the administrative and clerical employees for an A-76 study and when NAVSEA decided to abolish the administrative and clerical positions." Def.'s Mem. at 18. And according to the defendant, any subsequent actions discussed in the complaint, (i.e. the RIF) simply restated the harm that the plaintiffs had already allegedly suffered. Id. The plaintiffs argue, however, that their complaint is alleging discrimination based upon the RIF, which was an adverse personnel action. Plfs' Opp.'n at 7. This adverse personnel action, the plaintiffs opine, occurred when they were reassigned to new positions, and for some new positions at lower grades. Id.; Compl. ¶ 49. Viewing the facts set-forth in the complaint in the light most favorable to the plaintiffs, as the Court is required to do, the Court must conclude that the relief the plaintiffs seek is based upon the alleged adverse personnel actions arising from the RIF, not the A-76 study. See Compl. ¶¶ 63, 64, and 65 (seeking relief for the alleged discriminatory acts based upon the RIF). See Parker v. District of Columbia, 311 F.Supp.2d 103, 104 (D.D.C.2004) ("the Court construes the facts in...

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