De Medina v. Reinhardt, Civ. A. No. 77-0360.

Decision Date27 January 1978
Docket NumberCiv. A. No. 77-0360.
Citation444 F. Supp. 573
PartiesLuba S. Kowalyszyn DE MEDINA, Plaintiff, v. John E. REINHARDT, Defendant.
CourtU.S. District Court — District of Columbia

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. § 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 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

                1. August 1974     - Ukrainian Service, USSR Division
                2. "Summer" 1974   - Foreign Information Division
                                         USIA Office of Research
                3. October 1974    - Ukrainian Service, USSR Division
                4. "Sometime" 1975 - Foreign Information Division
                                         USIA Office of Research
                5. "Summer" 1975   - Production Branch, Africa Division
                6. "Late" 1975 or
                   "Early" 1976    - Ukrainian Service, USSR Division
                7. August 1976     - USSR Division
                8. August 1976     - Production Branch, Latin American
                                         Division
                9. August 1976     - Production Branch, Latin American
                                         Division (contract
                                         work)
                10. March 1977     - Classified Document Section
                                         USIA Library
                11. May 1977       - Ukrainian Service, USSR Division
                12. May 1977       - USIA Library
                13. June 1977      - Near East Division
                

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.

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.

"It is now established that `timely 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. § 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. § 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. § 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. § 713.214(a)(1)(i) (1977). Accordingly, she argues, the Court should not bar plaintiff's pre-April 1976 claims.

While the concept of "continuing violation" for the purposes of Title VII's jurisdictional limitations is recondite, it is clear that plaintiff has not alleged a "continuing violation" which could operate to except her from the time requirements of 5 C.F.R. § 713.214(a)(1)(i) (1977). As the Eighth Circuit has stated, "the rationale underlying the allowance of actions for continuing discrimination notwithstanding the Act's time requirements is to provide a remedy for past actions which operate to discriminate against the complainant at the present time." Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1234 (8th Cir. 1975). The Supreme Court, in the recent case of United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 551 (1977), indicated clearly, however, that this rationale is applicable only where a "present violation exists." Thus, where, as in the instant case, there is a mixture of timely and untimely claims, the Court must determine "whether the facts constitute a continuing pattern of discrimination commencing before the pertinent time period, yet progressing uninterrupted into that time frame." Tarvesian v. Carr Division of TRW, Inc., 407 F.Supp. 336, 339 (D.Mass.1976) (emphasis added). Absent such a present, uninterrupted pattern or system of discrimination in violation of Title VII, a federal employee's claims that arose more than 30 days before a charge was first filed with the defendant-agency are barred under Title VII.

The "continuing course of discriminatory conduct" alleged by plaintiff is a series of denials...

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