Sanders v. Veneman

• Decision Date: 22 February 2001
• Docket Number: No. CIV.A.00-1419(RMU).,CIV.A.00-1419(RMU).
• Citation: 131 F.Supp.2d 225
• Parties: William SANDERS, Plaintiff, v. Ann VENEMAN, Secretary, U.S. Department of Agriculture, Defendant.
• Court: U.S. District Court — District of Columbia

131 F.Supp.2d 225

William SANDERS, Plaintiff, v. Ann VENEMAN, Secretary, U.S. Department of Agriculture, Defendant.

No. CIV.A.00-1419(RMU).

United States District Court, District of Columbia.

February 22, 2001.

Gary Thomas Brown, Brown & Simmons, L.L.P., Washington, DC, for Plaintiff.

Meredith Manning, Asst. U.S. Atty., Washington, DC, for Defendant.

MEMORANDUM OPINION

DENYING THE DEFENDANT'S MOTION TO DISMISS; DENYING WITHOUT PREJUDICE THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

URBINA, District Judge.

I. INTRODUCTION

This matter comes before the court on the defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). The defendant alternatively moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. The plaintiff, William Sanders ("the plaintiff" or "Mr. Sanders"), brings this suit for damages under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The plaintiff claims that his employer, the U.S. Department of Agriculture, discriminated against him on the basis of his race and retaliated against him after he complained of unlawful discrimination. Specifically, the plaintiff alleges that his employer denied him promotions and reassigned him to a regional office, negatively affecting his career opportunities. See Compl. ¶¶ 6-8. The defendant, Ann Veneman, is the Secretary of Agriculture ("the defendant"), named in her official capacity.

The defendant moves to dismiss this action under Rule 12(b)(1) on the ground that the court lacks subject-matter jurisdiction because the plaintiff failed to timely exhaust his administrative remedies. See Mot. to Dis. at 1. The plaintiff counters that he sought EEO counseling two days after realizing that his employer had been discriminating against him. See Pl.'s Opp'n to Mot. to Dis. ("Pl.'s Opp'n") at 15. The defendant also moves to dismiss this action under Rule 12(b)(6) on the ground that a lateral transfer is not an adverse personnel action within the meaning of Title VII. See Mot. to Dis. at 1.

For the reasons that follow, the court holds that because the plaintiff contacted an EEO counselor within 45 days of his involuntary transfer, he has timely exhausted his administrative remedies. The court holds that the involuntary transfer and the surrounding circumstances in this case may constitute an adverse personnel action within the meaning of Title VII. Moreover, the court finds the plaintiff has established prima-facie cases of discrimination and retaliation.

Accordingly, the court will deny the defendant's motion to dismiss.

II. BACKGROUND

William Sanders, an African-American man, works as a GS-13 Criminal Investigator in the Office of Inspector General ("OIG"), a division of the U.S. Department of Agriculture ("USDA"). See Compl. ¶ 5. Between November 1995 and March 1996, Mr. Sanders applied for four GS-14 Criminal Investigator vacancies within the OIG. He made the "best qualified" list for each promotion but did not receive any of them. See Mot. to Dis. at 2. Instead, the defendant chose two white men, one African-American man, and one Hispanic man. See id. The defendant announced the selection of one of the white men and the African-American man on January 16, 1996, and announced the other two selections on March 25, 1996. See id.

On May 26, 1996, the defendant notified Mr. Sanders that he would be reassigned from the Washington, D.C. office to another GS-13 Criminal Investigator position in Riverdale, Maryland. Mr. Sanders viewed this involuntary transfer to an office outside of headquarters as a negative career move that would decrease his chances of receiving a promotion. See Compl. ¶ 8. Moreover, he claims that he "also suffered financial harm as a result of the transfer in that his per diem pay was significantly reduced, which noticeably diminished his salary." Pl.'s Opp'n at 4-5. Accordingly, on May 28, 1996, two days after he learned of his transfer, Mr. Sanders contacted an EEO counselor. See Pl.'s Opp'n at 5.

Mr. Sanders asserts that Craig Beauchamp, the Assistant Inspector General, was both the selecting official for the four promotions and the official who authorized Mr. Sanders's transfer to the regional office. See Pl.'s Opp'n at 3-4. Mr. Sanders claims Mr. Beauchamp was aware of his involvement in a "coalition to address problems that confronted African-Americans" within the OIG. See id. at 3. While Mr. Sanders was pursuing a promotion, Mr. Beauchamp allegedly assured him he would be promoted to a GS-14 position in the Washington office when the position became vacant. See id. at 3-4. Mr. Sanders claims that this assurance prevented him from recognizing a pattern of discrimination in the promotion decisions. He realized he was being discriminated against only when he received notice of his reassignment on May 26, 1996. See id.

The defendant counters that the promotions were neither discriminatory nor retaliatory, and notes that an African-American man was chosen for one of the positions. See Def.'s Reply to Pl.'s Opp'n ("Reply") at 9. In addition, the defendant argues that any alleged conversations with Mr. Beauchamp "would simply not rise to the level of `misrepresentations' by the agency." See id. at 5. The defendant contends that Mr. Sanders suffered no diminution in salary or benefits as a result of his transfer. In addition, the defendant states that a decrease in per diem expense pay does not qualify as a legitimate salary diminution. See id. at 10-11. Moreover, the defendant asserts that each of the GS-14 selectees had worked in a regional or field office before their promotions, thus belying Mr. Sanders's claim that his transfer negatively affected his chances for promotion. See id. Finally, because the possibility of relocation was one of the conditions of Mr. Sanders's position, the defendant argues that Mr. Sanders cannot consider his reassignment involuntary. See Mot. to Dis. at 2-3.

Mr. Sanders visited an EEO counselor for the first time on May 18, 1996. See Mot. to Dis. at 3; Pl.'s Opp'n at 5. On July 20, 1999, the EEOC issued a decision finding that Mr. Sanders had satisfied the necessary procedural requirements for an administrative hearing. See Pl.'s Opp'n at 6. The EEOC issued its Final Agency Decision on March 17, 2000, holding that Mr. Sanders had satisfied all of the procedural prerequisites for a hearing. See id. at 6. The EEOC also determined that Mr. Sanders's transfer and non-selections for the promotion were based on legitimate, non-discriminatory reasons. See Mot. to Dis. at 3.

The USDA adopted and incorporated the EEOC's decision on March 17, 2000. See Pl.'s Opp'n at 6. Mr. Sanders brought suit in this court on June 15, 2000, within 90 days of the EEOC's final decision, as required by 42 U.S.C. § 2000e-16(c) and 29 C.F.R. § 1614.408. The defendant now moves to dismiss. For the reasons that follow, the court will deny the defendant's motion to dismiss.

III. ANALYSIS

A. Legal Standard

In reviewing a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), the court must accept all of the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiff's favor. See, e.g., Pitney Bowes v. United States Postal Serv., 27 F.Supp.2d 15, 19 (D.D.C.1998) (Urbina, J.). On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of persuasion to establish subject-matter jurisdiction by a preponderance of the evidence. See Darden v. United States, 18 Cl.Ct. 855, 859 (Fed.Cl.1989). While the court must accept all well-pled allegations of fact, allegations that are overbroad and unsupported by specific factual averments are insufficient to state a claim upon which relief can be granted. See DeVoren Stores, Inc. v. Philadelphia, 1990 WL 10003, *1 (E.D.Pa.1990); Crowder v. Jackson, 527 F.Supp. 1004, 1006 (W.D.Pa.1981).

For a complaint to survive a Rule 12(b)(6) motion to dismiss, it need only provide a short and plain statement of the claim and the grounds on which it rests. See FED. R. CIV. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss under Rule 12(b)(6) tests not whether the plaintiff will prevail on the merits, but instead whether the plaintiff has properly stated a claim. See FED. R. CIV. P. 12(b)(6); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled o.g. by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Thus, the court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Atchinson v. D.C., 73 F.3d 418, 422 (D.C.Cir.1996). In deciding such a motion, the court must accept as true all well-pleaded allegations of fact, excluding those that are overbroad and unsupported by specific factual averments. See Pitney Bowes, 27 F.Supp.2d at 19. Moreover, the court should draw all reasonable inferences in the nonmovant's favor. See Judicial Watch, Inc. v. Clinton, 880 F.Supp. 1, 7 (D.D.C.1995).

B. Timely Exhaustion of Administrative Remedies

A party must timely file all applicable administrative complaints and appeals to bring a claim in federal court. See Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997). Under 29 C.F.R. § 1614.105(a)(1), the aggrieved party must initiate contact with an EEO counselor within 45 days of the date of the alleged discriminatory matter. But, "[b]ecause untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it." See Bowden, 106 F.3d at 437.

In this case, the defendant claims the plaintiff did not file within 45 days of the allegedly discriminatory promotions. The plaintiff learned he did not receive the first two promotions on...