Opinion
CIVIL NO. JFM-03-309
July 14, 2003
MEMORANDUM
Ebrahim Radbod has brought suit alleging that he suffered harassment and was denied promotions on the basis of his religion and/or national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Now pending before me is a motion for summary judgment on Count I and to dismiss Count II of Radbod's complaint. For the reasons stated below, I will grant in part and deny in part the motion.
I.
Radbod, who is of Iranian origin and is a practicing Muslim, was hired by Defendant Washington Suburban Sanitary Commission ("WSSC") on March 24, 1991 as a Facilities Inspector I. (Compl. ¶ 5.) In the summer of 1994, Radbod was promoted to the position of Facilities Inspector II. (Id. ¶ 7.) Radbod works as a facilities inspector within the Project Delivery Group. In November 2000, the Project Delivery Group leader, Dominic Tiburzi, requested and received authorization to fill two positions: Project Manager ("PM") and Associate Project Manager ("APM"). (See Def.'s Ex. 2, 3.)
At WSSC, vacancies are "posted" internally for one to two weeks so that they can be filled by current WSSC employees whenever possible. (See Glass Decl. ¶ 2, Def.'s Ex. 4.) The Human Resources Group is responsible for screening applicants to identify those who satisfy minimum eligibility criteria. Depending on how many interviews the hiring manager wishes to conduct, some or all of the eligible applicants are forwarded to the hiring manager for interviews. (Id. ¶ 4, 5.) The PM position was posted between November 6, 2000 and November 20, 2000. (Id. ¶ 7.) Radbod applied for the PM position. (Compl. ¶ 10.) The APM job was posted between December 4, 2000 and December 18, 2000. (Glass Decl. ¶ 8, Def.'s Ex. 4.) Radbod, however, did not apply for the APM job. According to Radbod, he did not apply for the APM position because his supervisor, John Mitchell, advised him that it would hurt his chances of receiving the PM position. (Compl. ¶ 10.)
In January 2001, interviews were conducted for the PM position, including an interview of Radbod. (Tiburzi Decl. ¶ 7, Def.'s Ex. 1.) On January 19, 2001, John Maholtz was selected for the PM job. (Id. ¶ 11.) Radbod learned that he did not receive the promotion to PM on January 31, 2001. (Radbod Decl. ¶ 1.)
Interviews for the APM position were held in February 2001. (Tiburzi Decl. ¶ 12, Def.'s Ex. 1.) Radbod was not interviewed for the APM position because he did not apply for it. In March 2001, Alan Sauvageau was selected for the APM position effective April 1, 2001. (Id. ¶ 13, 14.) Another employee who interviewed for the APM position, Stan Dabeck, was considered highly qualified by the interviewers. Thus, Dabeck was also promoted to the position of APM effective April 1, 2001. (Id.) Radbod learned that he did not receive the APM position on March 8, 2001. (Radbod Decl. ¶ 2.)
Sometime in April or May of 2001, Radbod contacted William Kay, a Human Resources Group official at WSSC, and Sylvia Anderson, WSSC's Fair Practices Officer. (Id. ¶ 3.) Kay advised Radbod that his office, along with Anderson's office, could address Radbod's discrimination complaints. (Id. ¶ 4.) In August 2001, Anderson sent Radbod a memorandum indicating that she determined he was not entitled to relief. (Id. ¶ 6.) Radbod sent Anderson an email objecting to her findings on August 31, 2001. (Id. ¶ 7.) On September 5, 2001, Anderson advised Radbod that she was investigating his claim. (Id. ¶ 8.) Radbod never heard from Anderson after September 5, 2001.
According to Radbod, on or about December 1, 2001, he sent a charge to the Equal Employment Opportunity Commission ("EEOC"). (Id. ¶ 9.) On December 12, 2001 an EEOC supervisor sent Radbod a letter indicating that he needed to sign certain documents and return them to her office. (Id. ¶ 10.) Radbod signed the documents and returned them to the EEOC on December 21, 2001. (Id. ¶ 11.) Radbod was later informed that the EEOC did not work on his complaint until February 28, 2002 because the employee assigned to his case worked part-time from her home. (Id. ¶ 12.)
Radbod allegedly also suffered incidents of harassment during his employment.
According to Radbod, his supervisors repeatedly asked him to attend their church and to convert to their religion. (Compl. ¶ 14B.) After the attacks on the World Trade Center and the Pentagon on September 11, 2001, Radbod was threatened by a WSSC contractor. (Id. ¶ 14D.) On another occasion, a WSSC contractor put Radbod in a dangerous position when he was not provided with adequate safety equipment. (Id. ¶ 14E.)
II. A.
To assert a Title VII claim in federal court, a plaintiff must exhaust his administrative remedies by filing a timely charge with the EEOC. Under Title VII, a charging party must file an EEOC charge within either 180 or 300 days of the alleged unlawful employment practice, depending on whether the practice occurred in a "deferral state." 42 U.S.C. § 2000e-5(e)(1); see Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 439 (4th Cir. 1998). A deferral state, such as Maryland, is one with "a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof." 42 U.S.C. § 2000e-5(e)(1); see Tinsley, 155 F.3d at 439. In a deferral state, the 300-day time period generally applies. Tinsley, 155 F.3d at 439.
Title VII, however, also requires a plaintiff in a deferral state to first file with the appropriate state or local agency and then wait 60 days before filing a charge with the EEOC. 42 U.S.C. § 2000e-5(c); see Tinsley, 155 F.3d at 439. Where a plaintiff in a deferral state fails to file a charge with the appropriate state or local agency, he is only entitled to the 180-day time period. See Beall v. Abbott Labs., 130 F.3d 614, 620 n. 5 (4th Cir. 1997); E.E.O.C. v. Techalloy Maryland, Inc., 894 F.2d 676, 677 (4th Cir. 1990). It is undisputed that Radbod did not file a charge with a state or local agency. Accordingly, the 180-day time period applies to Radbod's claims.
Allegedly, Radbod sent an EEOC questionnaire to the EEOC on December 1, 2001. Even assuming this date is accurate, Radbod's failure to promote claims are untimely. The dates on which Radbod became aware that he was not promoted to the PM or APM positions, January 31, 2001 and March 8, 2001, are more than 180 days before he filed any papers with the EEOC — December 1, 2001.
I am considering the motion one for summary judgment in regard to Count I even though discovery has not yet taken place. Defendant's motion was entitled "Defendant's motion for summary judgment on Count I and motion to dismiss Count II." Moreover, Plaintiff filed his own affidavit and exhibits with his opposition to defendants' motion.
A stamp on the questionnaire notes that it was "received" on February 28, 2002 at 5:34 P.M.
January 31, 2001 is more than 300 days before December 1, 2001. Thus, even if Radbod had filed his claim with the appropriate Maryland agency, his failure to promote claim in regard to the PM position would still be time-barred.
Radbod argues that "the Defendant is estopped from raising the time limit" and that the time-period should be equitably tolled because defendant misled Radbod into believing that it was investigating his claims of discrimination and would act as his advocate. (Pl.'s Opp. at 2-3.)
Courts strictly adhere to the time limits in Title VII and rarely allow equitable tolling of limitations periods. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990). "Equitable tolling applies where the defendant has wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of action." C.M. English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987). "To invoke equitable tolling, the plaintiff must therefore show that the defendant attempted to mislead him and that the plaintiff reasonably relied on the misrepresentation by neglecting to file a timely charge." Id. Plaintiff has presented no evidence that Defendant concealed any information from him. Radbod possessed all of the facts necessary to file a charge with the EEOC relating to the failure of WSSC to promote him to the PM or APM positions. Accordingly, equitable tolling does not apply. See, e.g., Talbot v. Mobil Corp., 46 F. Supp.2d 468, 472 (E.D.Va. 1999).
"Equitable estoppel applies where, despite the plaintiff's knowledge of the facts, the defendant engages in intentional misconduct to cause the plaintiff to miss the filing deadline." Id. "The statute of limitations will not be tolled on the basis of equitable estoppel unless the employee's failure to file in timely fashion is the consequence either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge." Id. Moreover, estoppel will not apply "absent some indication that the [employer's] promise was a quid-pro-quo for the employee's forbearance in filing a claim." English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988); see also Talbot, 46 F. Supp.2d at 473. Radbod has presented no evidence of intentional misconduct, let alone conduct that constituted a quid-pro-quo for Radbod's failure to file a timely charge. Accordingly, equitable estoppel also does not apply.
B.
Radbod's failure to promote to the APM position claim fails for an additional reason — he cannot establish a prima facie case of failure to promote. In order to establish a prima facie case of failure to promote, Radbod must show by a preponderance of the evidence that "(1) [he] is a member of a protected class; (2) there was an open position for which [he] applied or sought to apply; (3) [he] was qualified for the position; and (4) [he] was rejected for the position under circumstances giving rise to an inference of unlawful discrimination." Evans v. Techs. Applications Servs. Corp., 80 F.3d 954, 958 (4th Cir. 1996). It is undisputed that Radbod did not apply for the APM position. Although Radbod argues, without providing any evidence, that he was advised by his supervisor that applying for the APM position would hurt his chances of receiving the PM position, such advice does not free Radbod from establishing the second element of a prima facie case. See, e.g., Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 406 (5th Cir. 1999).
Radbod also argues that he did not have to apply for the second APM position given to Stan Dabeck because the position was not advertised. It is true that "where an employer maintains an informal promotion selection process in which promotion positions are not posted or announced, formal applications are not accepted, and department managers select an employee for promotion based on their skills, qualifications and current job responsibilities, it is unnecessary for Plaintiff to demonstrate that [he] applied for a specific promotion position in order to meet the second prong of her prima facie case." Van Slyke v. Northrup Grumman Corp., 115 F. Supp.2d 587, 595 (D.Md. 2000) (citing Elguindy v. Commonwealth Edison Co., 903 F. Supp. 1260, 1267 (N.D.Ill. 1995). In this instance, however, Dabeck, unlike Radbod, applied for the APM position. Moreover, there is no evidence that Radbod expressed any interest in the APM position to those selecting the new APM (unlike the plaintiffs in Van Slyke and Elguindy). Thus, even if Radbod could establish a prima facie case as to the second APM position, he would be unable to establish pretext and his claim would fail.
III.
Relying entirely on Bass v. E.I. Dupont de Nemours Co., 324 F.3d 761 (4th Cir. 2003), WSSC argues that Radbod's harassment claim should be dismissed. In response, Radbod asserts that "[i]f necessary, Plaintiff can amend his complaint to allege the acts [of harassment] with more specificity." (Pl.'s Opp. at 4 n. 1.) Accordingly, I will grant Radbod leave to amend Count II of his complaint and state with more particularity "the repeated instances of discrimination and harassment" he was subjected to while working for WSSC.A separate order is being entered herewith.
ORDER
For the reasons stated in the accompanying memorandum, it is, this 14th day of July 2003
ORDERED that
1. Defendant's motion for summary judgment on Count I and to dismiss Count II of the complaint is granted in part and denied in part;
2. Summary judgment is granted in favor of Defendant on Count I;
3. Count II is dismissed; and
4. Plaintiff is granted leave to amend Count II of his complaint and shall file such an amendment on or before July 29, 2003.