Neves v. Kolaski

• Decision Date: 30 January 1985
• Docket Number: Civ. A. No. 82-0593 P.
• Citation: 602 F. Supp. 645
• Parties: Christiano NEVES v. Casimir KOLASKI, Samuel Pierce.
• Court: U.S. District Court — District of Rhode Island

602 F. Supp. 645

Christiano NEVES v. Casimir KOLASKI, Samuel Pierce.

Civ. A. No. 82-0593 P.

United States District Court, D. Rhode Island.

January 30, 1985.

Paul C. Borges, Providence, R.I., for plaintiff.

Everett C. Sammartino, Asst. U.S. Atty., Providence, R.I., Patricia Cook Profit, U.S. Dept. of Housing & Urban Development, for defendants.

OPINION AND ORDER

PETTINE, Senior District Judge.

The present action was brought by an employee of the Providence Office of the United States Department of Housing and Urban Development (HUD), alleging employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, the United States Constitution, and Executive Order 11478. The plaintiff, Christiano Neves, filed suit in this Court on September 15, 1982. He named as defendants the Supervisor of the Providence Office of HUD, Casimir Kolaski, and the Secretary of HUD, Samuel Pierce. His complaint alleges six specific acts of employment discrimination. It asserts that: 1) his civil rights were violated when he was denied a quality step increase in 1979 notwithstanding the fact that he possessed all of the requirements (Count I, Complaint); 2) defendant Kolaski failed to comply with affirmative action requirements when he did not promote the plaintiff, a minority, who was duly qualified for a promotion (Count II, Complaint); 3) the plaintiff was discriminated against when he was not found "highly qualified" after he had applied for a position of Deputy Supervisor for Management (Count III, Complaint); 4) two highly complimentary letters were not placed in his personnel file (Count IV, Complaint); 5) the critical elements of the HUD Employee Performance Planning and Annual Performance Evaluation (EPPES) were discriminatory (Count V, Complaint); and 6) the plaintiff was discriminated against when a GS-12 classified individual was given a position as an acting supervisor (Count VI, Complaint).

The federal defendants in this action move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the portions of the plaintiff's complaint which allege violations of the United States Constitution and of Executive Order 11478 against the Secretary on the grounds that Title VII is the exclusive remedy available to the plaintiff. They further seek dismissal of the complaint against the Supervisor of the Providence Office of HUD on the ground that he is not a proper defendant in a Title VII action. Finally, the defendants request dismissal under Fed.R.Civ.P. 12(b)(1) of Counts I through VI of the plaintiff's complaint on the theory that the plaintiff's failure to file a timely complaint of discrimination with the appropriate federal agency deprives this Court of subject matter jurisdiction over the suit. In the alternative, the government seeks summary judgment against the plaintiff, pursuant to Fed.R.Civ.P. 56, on the ground that the plaintiff has failed to allege a continuing violation of Title VII that would effectively suspend the time limitations for the filing of an administrative complaint.

I Background of the Case

On May 6, 1982, the plaintiff sent a letter complaining of employment discrimination by HUD to the Equal Employment Opportunity EEO Counselor of the Providence Service Office. The complaint identified several incidents of alleged discrimination which are the basis of Counts I through V of the instant action. In addition, Neves complained of two additional discriminatory acts which are not asserted in this action.¹ With regard to the allegations which are the subject of this litigation, the plaintiff has conceded that he was aware of these alleged discriminatory acts for some time before he discussed them with the EEO Counselor. Specifically, Neves knew on February 9, 1981 that his nomination for a Quality Step Increase had been returned; he was aware before October 7, 1979 that he had not been selected to the Best Qualified List for the position of Deputy Supervisor for Management for the Providence Office; and he first believed on or about August 11, 1980, that his supervisor had suppressed certain complimentary letters. The plaintiff has further conceded that the EPPES format of which he complained has not been used to evaluate his performance since September 30, 1980.

On June 3, 1981, Neves filed a formal complaint of discrimination with the Secretary of HUD. In addition to the allegations of his May 6 letter, Neves asserted the alleged discriminatory incident which is the basis of Count VI of his district court complaint. HUD's Assistant Secretary for Fair Housing and Equal Opportunity issued a final agency decision regarding Neves' complaint on September 30, 1981. The agency rejected the allegations represented in Counts I through V of the district court complaint as having been untimely brought to the attention of an EEO Counselor. It also rejected the charge forming Count VI of the complaint due to Neves' failure to discuss the incident with an EEO Counselor at any time. The two allegations which Neves is not pursuing in the instant suit were accepted by the agency for further processing.

Neves appealed the agency decision to the Equal Employment Opportunity Commission on October 25, 1981. In August of 1982, the EEOC reversed the agency's decision to reject the allegations contained in Counts I through V as untimely. It reasoned that because the agency had accepted for processing two recent charges of discrimination, the other untimely filed charges should be considered part of a pattern of continuing discrimination, and thus be accepted for processing as well. On June 21, 1984, the EEOC reversed the August 1982 decision and found that the four allegations in Neves' administrative complaint were properly rejected by the agency as "independent and discrete acts which should have been discussed with the EEO Counselor within 30 days of their occurrence." Those allegations are contained in Counts I through V of the instant complaint.

II. Motion To Dismiss Claims Based on the Constitution and Executive Order 11478

As an initial matter, the federal defendants seek dismissal of the claims against the Secretary which are based on the Constitution and Executive Order 11478. In support of their plea, they assert that Title VII of the Civil Rights Act of 1964 is the exclusive remedy available to a federal employee to redress alleged employment discrimination. The United States Supreme Court disposed of the very issue defendants raise in the case of Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). I find that the holding of that opinion is wholly applicable to the case before me.

In Brown, the Court held that Section 717 of the Civil Rights Act of 1964, as added by § 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 provides the exclusive judicial remedy for claims of discrimination in federal employment. Id. at 833, 96 S.Ct. at 1968. The Act allocates, "a careful blend of administrative and judicial enforcement powers." Its "balance, completeness and structural integrity" indicate that Congress intended it to serve as the sole remedy for discrimination against federal employees. Id. at 834, 96 S.Ct. at 1968. The plaintiff may not, therefore, circumvent the remedial scheme of Title VII through pleading a separate cause of action under the Constitution or Executive Order 11478. See id.

III. Defendant's Motion to Dismiss Plaintiff's Complaint and Alternative Motion for Summary Judgment²

The federal defendants argue that the plaintiff's action should be dismissed on the ground that he failed to meet the EEOC's requirements for the timely filing of a discrimination complaint as set forth in their administrative regulations, at 29 C.F.R. § 1613 et seq. They assert that such an omission deprives this Court of subject matter jurisdiction over the plaintiff's suit. In the alternative, defendants request summary judgment on the theory that Neves' suit is time barred under the pertinent administrative filing requirements. Before passing on the merits of these claims, I shall briefly examine the relevant statutory and regulatory provisions.

A. Applicable Law

Section 2000e-16 of the Civil Rights Act of 1964 protects employees of the federal government or applicants for employment from discrimination on the basis of race, color, religion, sex, or national origin. Id. at § 2000e-16(a). The statutory scheme contemplates a process whereby employees may lodge initial complaints of discrimination with the employing agency. After a final agency decision is rendered, the complainant may appeal the decision to the Equal Employment Opportunity Commission. Any person aggrieved by a final agency action, or by a decision on appeal to the EEOC, may file a civil action in district court within thirty days of that decision. Id. § 2000e-16(c). Title VII vests the EEOC with the responsibility to promulgate regulations implementing and enforcing these provisions. Id. § 2000e-16(b).

Because the provisions fashion a detailed anti-discrimination enforcement system involving both the administrative and judicial branches of our government, potential plaintiffs have stringently been required to comply with Title VII's procedural mechanisms. Thus a federal employee must exhaust his administrative remedies as well as meet requirements for a timely filing of administrative complaints before he may institute a discrimination action in federal court. Brown, supra, 425 U.S. at 833, 96 S.Ct. at 1968. Specifically, the employee, once he becomes aware of the allegedly offensive act, must file a complaint with employing agency. Id. See e.g., Porter v. Adams, 639 F.2d 273 (5th Cir.1981). The EEOC's regulations provide that the agency may accept such a complaint for processing only if the complainant has brought the alleged violations to the attention of an EEO Counsellor within thirty calendar days of the time he first had reason to know of the alleged...