Summary
noting that plaintiffs were challenging a policy or practice of discrimination, not discrete acts, and thatMorgan had no applicability
Summary of this case from Moore v. ChertoffOpinion
Civil Action No. 04-0015.
May 13, 2005
MEMORANDUM OPINION
Plaintiffs, Air Traffic Assistants ("ATA") at the Federal Aviation Administration ("FAA"), bring this class action against Defendant, Norman Y. Mineta, the Secretary of Transportation. Plaintiffs allege that Defendant has engaged in a national policy and practice of denying promotions to ATAs, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq.. This matter is now before the Court on Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendant's Motion is granted. I. BACKGROUND
Summary judgment may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Consequently, unless otherwise noted, the Court states only uncontroverted facts. See LCvR 7.1(h).
A. Factual Background
The Plaintiff class "consists of all persons employed as ATAs from 1993 to 1996 (and thereafter) who are women and/or minorities and/or were over age 40 during the period 1993-1996." Compl. at ¶ 8. Plaintiffs, who are overwhelmingly minority, female, and over the age of 40, allege that they perform similar functions to Air Traffic Control Specialists ("ATCS") and that from 1993 to 1996, they were denied opportunities for promotion to the ATCS position by the FAA's discriminatory national policy of denying such positions to ATAs.
The named Plaintiffs are individuals who were ATAs between 1993 and 1996: (1) Milton J. Torres, III, a Hispanic male; (2) Emily Harvey, an African American female who was born in 1951; (3) Debra A. Bouchard, a Caucasian female; (4) Robert Ingram, an African American male; (5) Richard Chan, an Asian American male; (6) Gregory Garcia, a Hispanic male; (7) Hector Ramos, a Hispanic male; (8) Iris Moreno, a Hispanic female; and (9) William Pratt, a Caucasian male who was born in 1934. There are approximately 316-724 current and former class members, who are 60 percent female, 37 percent minority, and 40 percent over the age of 40. Compl. at ¶ 8.
The ATA position was created after the 1981 strike of the Professional Air Traffic Controllers Organization ("PATCO") against the federal government. Def.'s Mot. at 12. In response to that strike, President Ronald Reagan fired approximately 11,000 ATCSs and permanently barred them from reapplying for ATCS positions. Due to the resulting shortage of air traffic controllers, the FAA began hiring displaced airline pilots and ex-military controllers as Flight Data Specialists. Id.. The Flight Data Specialists were not ATCSs but were intended to "relieve [ATCSs] temporarily from certain lower priority assignments so they could devote more of their time to the control of air traffic." Def.'s Ex. 13 at 23.
In May of 1982, the Flight Data Specialist positions were restructured and classified as ATAs. Later that year, the FAA made the ATA positions permanent. Id.. As new ATA positions opened, the FAA filled many of them with individuals who had failed their ATCS training. Id..
ATAs are in the GS-2154 series and can advance to the level of GS-7. Compl. at ¶ 25. ATCSs are in the GS-2152 series and begin employment at the GS-13 or GS-14 levels. Id.. Based on those differences in salary, advancement potential, and prestige, many ATAs have sought to enter training or to retrain for ATCS positions.
In 1992 or 1993, Defendant developed a new ATCS training program, "Training to Succeed" ("TTS"), which is alleged to be more friendly to trainees than the previous training system, which many ATAs failed to complete successfully. Compl. at ¶ 26. Plaintiffs claim that in the past, ATCS training failures were assigned to ATA positions, id., while TTS training failures are eligible for ATCS positions. Id.. Plaintiffs allege that ATAs are not eligible to participate in the TTS program. Id..
On August 12, 1993, President Bill Clinton repealed the bar that President Reagan had placed on hiring former PATCO employees, permitting them to apply, without preference, for ATCS openings within the FAA. Def.'s Mot. at 13. Plaintiffs contend that, as a result, ATAs have been denied ATCS jobs, while former PATCO employees — who are overwhelmingly white, male, and under age 40 — have been hired for those positions.
B. Procedural Background
Plaintiff Torres has been employed by the FAA since December 16, 1988, and was an ATA from 1990 to 1998. Compl. at ¶ 34. He currently is an ATCS in Miami. Id.. Torres initially failed his ATCS training and was offered an ATA position. Upon accepting the ATA position, he alleges that he was "promised an opportunity to be recycled [back into ATCS training] after one year." Def.'s Ex. 12 at 3. He further alleges that this promise never materialized.
In 1993, in the wake of President Clinton's decision to allow the hiring of former PATCO employees, Torres "first felt the impact of the FAA's discriminatory national policy." Compl. at ¶ 43. He alleges that at that time, the FAA "began to grant preferential treatment to non-ATAs (mainly ex-PATCO members) through the [TTS] program." Id.. Torres asked why ATAs could not participate in the program, and he allegedly was told that "the policy of the FAA was against selecting ATAs for Air Traffic Controller positions."Id..
On April 19, 1995, Torres filed a formal grievance about the FAA's alleged policy of not hiring ATAs as ATCSs. Def.'s Ex. 25 at 1. On July 31, 1995, the agency notified Torres that it could not consider his grievance because the applicable regulations "exclude from the grievance procedure a decision that is appealable to the Merit System Protection Board or subject to final administrative review by the Office of Personnel Management or the Equal Opportunity Employment Commission" ("EEOC") Def.'s Ex. 26.
Throughout 1995 and 1996, Torres continued to correspond with various FAA and elected officials to protest the alleged policy and the denial of his grievance. On August 1, 1996, David Canoles, Acting Program Director for Air Traffic Resource Management, suggested that Torres bring his complaint to the EEOC. Def.'s Ex. 30 at 8.
On August 15, 1996, Torres contacted an EEO counselor seeking class counseling, and on October 29, 1996, he filed a formal class complaint with the EEOC. Compl. at ¶ 7. On December 12, 1997, an EEOC Administrative Judge rejected class certification, and on January 27, 1998, the DOT accepted the decision and dismissed the class complaint. Id.. DOT also dismissed Torres' individual claim.
Torres appealed the dismissal, and on March 22, 2001, the EEOC's Office of Federal Operations reversed the decision and remanded the class complaint, with Torres' individual complaint subsumed within it. Id.. On January 8, 2004, Plaintiffs filed the instant Complaint, while the case was pending on remand at the Administrative Judge level. Id..
The Complaint alleges that: (1) the alleged national policy had a disparate impact on class members on the basis of their sex, race, national origin, and age; and (2) the alleged policy unlawfully subjected class members to disparate treatment on the basis of their sex, race, national origin, and age.
II. STANDARD OF REVIEW
Summary judgment will be granted when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). A fact is "material" if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The party seeking summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Defendant has filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. Since the Court has considered facts outside the First Amended Complaint to reach its conclusions, "the motion shall be treated as one for summary judgment and disposed of as provided in [Fed.R.Civ.P. 56]. Fed.R.Civ.P. 12(b).
In determining whether the movant has met this burden, a court must consider all factual inferences in the light most favorable to the non-moving party. McKinney v. Dole, 765 F.2d 1129 (D.C. Cir. 1985); see also Liberty Lobby, 477 U.S. at 255. Once the moving party makes its initial showing, however, the nonmoving party must demonstrate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324;McKinney, 765 F.2d at 1135. Accordingly, the nonmoving party must provide evidence that would permit a reasonable jury to find in his or her favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted).
III. ANALYSIS
Defendant contends that Plaintiffs' claims are barred because they did not initiate EEO counseling in a timely fashion and fail to properly allege a continuing violation. Defendant further contends that Plaintiffs' claims involve discrete acts and therefore cannot constitute a continuing violation under Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Plaintiffs respond that they have properly alleged a continuing violation because they claim that the FAA continuously implemented an unlawful "policy or practice" of discrimination.
In his Motion to Dismiss, Defendant also argued that: (1) none of the individual claims of discrimination were properly exhausted; (2) venue in this jurisdiction was improper with respect to the individual claims; (3) Plaintiff Ingram waived his rights to raise claims of discrimination in a settlement agreement with the FAA; (4) Plaintiffs cannot show adverse personnel actions; and (5) disparate impact claims are not cognizable under the ADEA. Since Plaintiffs have asserted that they only raise individual incidents of discrimination as evidence of their class claims, not as independent statutory violations, the first two issues are moot. Plaintiffs also have conceded that Plaintiff Ingram's claims are barred. Since the Court grants Defendant's Motion on timeliness grounds, it need not reach the other issues.
A federal employee alleging discrimination under Title VII or the ADEA must consult an agency EEO counselor within 45 days of the alleged discriminatory act, or, in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105. In a class action, at least one named plaintiff must have exhausted the applicable administrative remedies. Jackson v. Dist. of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001); Foster v. Gueory, 655 F.2d 1319, 1321-22 (D.C. Cir. 1981). It is undisputed that the other named Plaintiffs have failed to satisfy the exhaustion requirement, so the only question in this case is whether Plaintiff Torres satisfied the requirement.
A plaintiff who timely seeks counseling with respect to one claim, but not earlier claims, may attempt to "save" the earlier claims by asserting the continuing violation theory. Wiggins v. Powell, 2005 WL 555417 at 15 (D.D.C. March 7, 2005). "In this circuit, it has been held that plaintiff[s] may litigate claims under the `continuing violation' theory . . . if [they] can prove either a `series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the statutory period.'" Haynie v. Veneman, 272 F. Supp. 2d 10, 15 (D.D.C. 2003) (quoting Anderson v. Zubieta, 180 F.3d 329, 336 (D.C. Cir. 1999)). "Under the caselaw in this circuit, a continuing violation was to be established on a case-by-case review of the facts." Id. at 16.
However, "the Supreme Court rejected this and similar formulations of the test for a continuing violation" in Morgan, Haynie, 272 F. Supp. 2d at 16, holding that discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. The Supreme Court reasoned that an act of discrimination — such as denial of promotion or failure to hire — or retaliation "necessarily take[s] place on a particular day. That is the day the discriminatory act `occurred' and thus the day from which the statute of limitations runs." Id.. The continuing violation theory therefore cannot "be employed to preserve untimely claims founded on discrete acts of discrimination even if they are substantially related to timely claims based on similar discrete acts." Id..
While Morgan overturned the continuing violation doctrine as applied to discrete acts of discrimination, it also made clear that it "ha[d] no occasion to consider the timely filing question with respect to `pattern-or-practice' claims brought by private litigants." Morgan, 536 U.S. at 115 n. 9. Thus, in "pattern-or-practice" and "policy-or-practice" cases, our Circuit's preexisting case law on continuing violations still governs, insofar as it has not been altered by Morgan. See Gulino v. Bd. of Educ. of the City School Dist. of the City of New York, 236 F. Supp. 2d 314, 326 (S.D.N.Y. 2002) ("Accordingly, the court assumes that the continuing violations doctrine, still in effect for pattern-orpractice cases, also remains in force for `policy or practice' cases.").
In short, Morgan has no applicability to this case and does not bar its allegations because Plaintiffs are challenging a "policy or practice" of discrimination. Defendant attempts to characterize Plaintiffs' claims as discrete acts. However, Plaintiffs are not challenging specific instances in which they were denied promotion or training opportunities. Rather, they are challenging a "national policy . . . designed to disqualify experienced and talented ATAs from promotions to [ATCS] positions." Pl.'s Opp. at 1. This is analogous to the situation in Gulino, where the alleged discriminatory policy was on-going and "locked [plaintiffs] into their status. . . ." Gulino, 236 F. Supp. 2d at 326 (holding that African American and Latino teachers could use the continuing violation theory to challenge the requirement that teachers achieve a certain score on a test to receive or retain teaching licenses).
Moreover, the allegations in this case are unlike those in which plaintiffs are challenging discrete acts but attempt to cast their claims as "policy or practice" claims. For example, inDavidson v. America Online, Inc., 337 F.3d 1179 (10th Cir. 2003), the Court found that Morgan precluded consideration of plaintiff's claims as a continuing violation because "the essence of his complaint does not stem from the hiring policy, but rather from the individualized refusals to hire that resulted from implementation of that policy." Id. at 1186. The Ninth Circuit made a similar determination in Cherotsky v. Henderson, 330 F.3d 1243, 1247 (9th Cir. 2003), finding that "the heart of plaintiffs' complaint does not stem from the policy regarding the use of respirators, but rather from the individualized decisions that resulted from implementation of a policy." Id. (quotation marks and citation omitted); see also Haynie, 272 F. Supp. 2d at 17 n. 4 ("the core of plaintiff's challenge is defendant's individualized discrimination against her and her family, not a `pattern-and-practice' claim to which the exception suggested in Morgan might apply"). In the instant case, the exact opposite is true: the heart of Plaintiffs' Complaint stems from the policy prohibiting ATA advancement to ATCS positions, not the individualized decisions resulting from application of the policy. For these reasons, Morgan does not apply, and this Circuit's pre-existing continuing violations doctrine controls.
To sufficiently allege a continuing violation, Plaintiffs "must show that at least one adverse employment action occurred within the [limitations] period." Gary v. Washington Metro Area Transit Auth., 886 F. Supp. 78, 89 (D.D.C. 1995). "Specific, unrelated incidents of discrimination do not constitute a continuing violation." Id.. "Moreover, [our] Circuit has clearly held that plaintiff[s] may not rely on the continuing violation theory where [they were] aware of the discriminatory conduct at the time it occurred." Schrader v. Tomlinson, 311 F. Supp. 2d 21, 27 (D.D.C. 2004) (citing Taylor v. Fed. Deposit Ins. Corp., 132 F.3d 753, 765 (D.C. Cir. 1997)).
In this case, Plaintiffs' continuing violation claim fails because Torres did not initiate EEO counseling when he first learned of the FAA's policy. Plaintiffs acknowledge that Torres "first felt the impact of the FAA's discriminatory national policy" in 1993. Compl. at ¶ 43. He therefore was required to initiate EEO counseling within 45 days of that time, Schrader, 31 F. Supp. 2d at 27, and it is undisputed that he failed to do so. At a minimum, he should have initiated EEO counseling within 45 days of July 31, 1995, the day the FAA notified him that he should contact the Merit System Protection Board, the Office of Personnel Management, or the EEOC. Def.'s Ex. 26. This put him notice that the FAA grievance process was not the appropriate way to resolve his complaint, but he continued to correspond with the FAA and did not seek EEO counseling until August 15, 1996. Therefore, Torres' initiation of EEO counseling was untimely because he did not seek EEO counseling within 45 days of the time at which he learned of the discriminatory policy.
The Court's inquiry does not end there, however. The 45-day time limit is not a "jurisdictional bar to bringing suit."Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). Rather, it "function[s] like [a] statute of limitations" and is therefore "subject to equitable tolling, estoppel, and waiver."Id.. Equitable tolling in Title VII cases can occur in various circumstances, including situations where: (1) parties make diligent but technically defective efforts to act within the limitations period; (2) parties are misled about the running of the limitations period by an adversary or by a government official; (3) parties are not provided with accurate or effective notice by a government agency required to provide such notice; and (4) parties neither knew nor had reason to know of the limit.Id..
In this case, Plaintiffs argue that their claims are subject to equitable tolling because Torres "was led to believe that his concerns could be addressed" through the agency grievance process. Pl.'s Opp. at 9 n. 2. This argument is without merit. As stated above, the agency notified Torres on July 31, 1995 — just over three months after he filed his agency grievance — that his concerns could not be addressed through the agency grievance process and should be addressed to one of three other agencies, including the EEOC. Thus, the FAA did not mislead Torres but, instead, attempted to steer him in the right direction. Torres cannot now blame the FAA for his decision to continue pursuing his claims within the agency. Plaintiffs' claim therefore is not subject to equitable tolling, and Defendant is entitled to summary judgment.
IV. CONCLUSION
Plaintiff Torres failed to seek timely EEO counseling after learning of the FAA's discriminatory national policy. Moreover, his claim is not subject to equitable tolling. Accordingly, Defendant's Motion to Dismiss, or, in the Alternative, for Summary Judgment, is granted, and this case is dismissed in its entirety.
An Order will issue with this Opinion.