Opinion
Civ. No. H-97-3154.
December 1999.
MEMORANDUM AND ORDER
There has been extensive pretrial litigation in this case. The factual background of this Title VII suit has been set forth in prior rulings of this Court and will not be repeated here. In its Opinion of August 24, 1998, the Court denied plaintiffs' motion for class certification. See 182 F.R.D. 188 (D. Md. 1998). Plaintiffs' motion to compel was granted in part and denied in part in the Court's Memorandum and Order of February 11, 1999. In its Memorandum and Order of August 18, 1999, the Court denied plaintiffs' second motion for class certification, denied plaintiffs' motion for summary judgment treated as a motion for partial summary judgment, and granted in part and denied in part defendants' motion for summary judgment.
Presently pending before the Court are plaintiffs' motion in limine and defendants' motion in limine. Memoranda and exhibits in support of and in opposition to these motions have been submitted by the parties and reviewed by the Court. Oral argument has been heard in open court. For the reasons stated herein, plaintiffs' motion in limine will be denied, and defendants' motion in limine will be granted in part and denied in part.
I Plaintiffs' Claims
As this Court has previously held, plaintiffs may present to the jury at the trial of this case their claims that they were discriminatorily denied promotions because of their sex and/or race. There has been extensive pretrial discovery in this case directed in large part to a determination of the promotional positions at issue. Each plaintiff in this case must establish aprima facie case of discriminatory failure to promote as to each position sought by him. Each plaintiff must prove (1) that he is a member of a protected group; (2) that he applied for the position in question; (3) that he was qualified for the position; and (4) that he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994); McNairn v. Sullivan, 929 F.2d 974, 977 (4th Cir. 1991).
Plaintiff Bostron claims that he was discriminatorily denied promotion to eighty-four separate positions between April of 1985 and April of 1998. Plaintiff duBois contends that there are three vacancies at issue for him, namely VAN M-812, VAN M-815 and VAN M-859. According to plaintiff Boyer, he was discriminatorily denied one promotion, namely VAN H-1663.
Counsel has submitted to the Court a chart setting forth the eighty-four positions claimed to be at issue in Bostron's case. This chart shows whether records of the SSA confirm that Bostron was on the Best Qualified List and also includes, where that information has been provided by the SSA, the name, race and gender of the individuals selected for the position.
VAN is the acronym for "Vacancy Announcement Number."
II Plaintiffs' Motion In Limine
By way of their motion in limine, plaintiffs have asked the Court to enter an Order precluding defendants from introducing at the trial any evidence or witness testimony not provided to plaintiffs in response to certain discovery requests made by them. This motion is premature and will be denied.
At this stage of the case, it is not possible for the Court to know exactly what evidence will be presented at the trial by plaintiffs in support of their claims nor what evidence will be presented by defendants by way of defending those claims. There has not yet been a pretrial conference, and a final Pretrial Order has not been entered. Plaintiffs have pointed to no particular exhibits or testimony which defendants will present in evidence at the trial and which should at this time be excluded because of defendants' failure to comply with proper discovery requests.
If grounds exist to support plaintiffs' objections to evidence presented by defendants at the trial based on defendants' failure to comply with proper discovery requests, counsel for plaintiffs may make those objections at the trial itself. The Court will then be in a position to know the evidence which has been introduced by the plaintiffs and the challenged evidence sought to be presented by the defendants. If grounds exist to support any such objections, the evidence in question proffered by the defendants will be excluded.
For these reasons, plaintiffs' motion in limine will be denied.
III Defendants' Motion In Limine
In support of their motion in limine, defendants once again contend that except for one position, plaintiffs Bostron and duBois did not timely exhaust administrative remedies as to the claims at issue in this case. According to defendants, this Court should rule that plaintiff Bostron and plaintiff duBois should be precluded from undertaking to present evidence establishing aprima facie case as to all positions listed by them except for the VAN M-815 position. Defendants further argue that none of the positions sought by plaintiff Boyer are actionable and that judgment should be entered in favor of defendants as to Boyer's claims.
(a) Plaintiff Bostron
In seeking summary judgment as to the claims asserted by plaintiff Bostron in this case, defendants previously argued that, with the exception of some seven positions, Bostron did not properly exhaust his administrative remedies because no EEO counseling request had been made within the applicable 45 day period after the alleged adverse employment action. In its Memorandum and Order of August 18, 1999, this argument was rejected by the Court. (Slip op. at 19).
In that earlier ruling, the Court held that the doctrine of continuing violation applied in this case and that, under the circumstances here, plaintiff Bostron was not barred from proceeding to trial on actionable claims because of his failure to exhaust administrative remedies. In discussing the doctrine of continuing violation, the Court said the following (slip op. at 20-21):
Insofar as plaintiff Bostron is concerned, plaintiffs argue, inter alia, that the doctrine of continuing violation allows the court to consider any untimely failures on his part to request EEO counseling because each alleged violation is part of a larger ongoing discriminatory policy at the SSA. Under the continuing violation theory, if an actual violation has occurred within the requisite time period and if the untimely claims can be related to the timely incident, all the claims may be considered as timely. See Beall v. Abbott Labs., 130 F.3d 614, 620 (4th Cir. 1997). Incidents outside of the statutory window are not time barred if they can be related to a timely incident as a "series of separate but related acts" amounting to a continuing violation. Id., (quoting Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir. 1980)).
Since plaintiffs are here relying on evidence of a systematic pattern and practice of discrimination against white males at the SSA, the Court concludes that the doctrine of continuing violation applies in this case. Although, as defendants point out, each non-selection involved different persons at different times and in different factual settings, these non-selections can be viewed as part of an official policy which encourages systematic discrimination against white males seeking promotions. Thus, plaintiffs have here presented proof of a "series of separate but related acts amounting to a continuing violation." Beall, 130 F.2d at 620) (internal quotation marks omitted). Accord Selan v. Kiley, 969 F.2d 560, 565 (7th Cir. 1992) ("[One] theory [of continuing violations] stems from cases in which the employer has an express, openly espoused policy that is alleged to be discriminatory."); Mack v. Great Atl. Pac. Tea Co., 871 F.2d 179, 183-84 (1st Cir. 1989) (applying continuing violation theory to a "systematic" promotional policy); Trevino v. Celanese Corp., 701 F.2d 397, 402-403 (5th Cir. 1983) ("[It is] clear that discriminatory failure to promote represents a continuing violation of Title VII. . . .").
In support of their motion in limine, defendants rely on an argument not previously presented in their earlier motion for summary judgment. For the first time, defendants contend that, insofar as the claims of plaintiff Bostron are concerned, the so-called "beachhead violation" was the denial of his application for promotion to the VAN M-815 vacancy in July of 1998. See Pilgrim v. Trustees of Tufts College, 118 F.3d 864, 869 (1st Cir. 1997). According to defendants, this is the only vacancy as to which Bostron filed a timely administrative complaint, and defendants argue that evidence indicating that he was discriminatorily denied promotions to all the other listed positions should be excluded.
As noted by Judge Messitte in Blount v. Shalala, 32 F. Supp. 339, 341 (D. Md. 1999), "a federal employee's failure to consult with an EEO counselor within the time required after an alleged act of discrimination . . . is grounds for dismissing the employee's Title VII claim in federal court."
As indicated by the applicable case law, there are two general categories of continuing violations. The first is a pattern of ongoing or continuous discrimination, sometimes referred to as a "serial" violation. Jensen v. Frank, 912 F.2d 517, 522 (1st Cir. 1990); Redding v. Anne Arundel County, Md., 996 F. Supp. 488, 490 (D.Md. 1998). A "serial" violation is one "comprising a number of discriminatory acts emanating from the same discriminatory animus, each of which constitutes a separate wrong actionable under Title VII." Pilgrim, 118 F.3d at 869;Redding, 996 F. Supp. at 490 (citations omitted). To prevail under a "serial" violation theory, the series must contain a specific "beachhead violation" occurring within the limitations period. Pilgrim, 118 F.3d at 869. At least one timely discriminatory act or practice must be identified and the mere subsequent effects of earlier discriminatory acts will not extend the limitations period. Id.
The second type of continuing violation encompasses "systemic" violations where an express policy of unlawful discrimination exists, requiring the plaintiff to prove that the policy manifests itself over time. Redding, 996 F. Supp. at 490. So long as the policy or practice itself continues into the limitations period, a challenger may be deemed to have filed a timely complaint. Id. at 490 (citing Hill v. AT T Tech., Inc., 731 F.2d 175, 176 (4th Cir. 1984)). As stated by the Second Circuit in Lambert v. Genesee Hosp., 10 F.3d 46 (2d Cir. 1993):
Under the continuing violation exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.Id. at 53. [Emphasis added].
Defendants' reliance on a "beachhead violation" analysis in this case is misplaced. In advancing such an argument, defendants disregard the differences between systemic violations and serial violations and ignore prior rulings which were made by this Court and which constitute the law of this case. As the Court has previously held, plaintiffs in this case have presented proof of a series of separate but related acts amounting to a continuing violation. Plaintiff Bostron was on July 19, 1998 denied promotion to the VAN M-815 position. He initiated EEO counseling on August 31, 1998, within the 45 day limitations period for taking such action. The position in question was filled by a non-white male. As defendants have conceded, plaintiff Bostron exhausted his administrative remedies as to this position, and his claim was therefore timely and is actionable. However, claims based on similar incidents both before and after the denial of July 19, 1998 are also actionable under the continuing violation theory, even though no timely request for EEO counseling was made as to any of these earlier or later incidents. Evidence exists that the other untimely incidents are related to the VAN M-815 position as a series of separate but related acts amounting to systemic discrimination against white males seeking promotions.See Beall, 120 F.3d at 620. Even though all of the other eighty-three positions listed by plaintiff Bostron would be considered untimely if they were merely serial violations, they cannot at this stage of the case be considered to be untimely in view of evidence of record indicating that they were systemic violations.
It should be understood, however, that the Court is not ruling as a matter of law that the continuing violation theory would permit the jury to consider all of Bostron's claims arising as a result of the fact that he was not selected for all eighty-four of the positions which he allegedly sought. Plaintiff Bostron has the burden in this case of proving that a systematic pattern and practice of discrimination against white males existed at the Social Security Administration, and that each denial of promotion was one of a series of separate but related acts amounting to a continuing violation. After hearing evidence pertaining to all of plaintiff's claims, the jury will determine whether one or more of them is barred by limitations.
Defendants note that Bostron made his first request for EEO counseling as to a non-selection occurring on January 31, 1995. (VAN I-764). Defendants argue that Bostorn demonstrably knew on that date of the discrimination alleged in his complaint and that he was accordingly obliged to make timely requests for counseling as to each later position in order to be able to present claims in this Court resulting from these later non-selections.
Defendants' argument would have merit if this case involved serial violations. However, as noted herein, Bostron's claims are based on alleged systemic violations. A series of separate violations may be treated as a continuing violation where a plaintiff had no reason to believe that he was a victim of systemic discrimination "until a series of adverse actions established a viable pattern of discriminatory treatment." Selan v. Kiley, 959 F.2d 560, 565-66 (7th Cir. 1992). At the trial, plaintiff Bostron will be permitted to present proof indicating that he did not believe that he was a victim of systemic discrimination until his application for promotion to the VAN M-815 position was not approved. It will be for the jury to determine the date when defendants' alleged systemic discriminatory policy matured to the point that Bostron had reason to file a claim based on such a policy. If Bostron knew or should have known that he was a victim of systemic discrimination as a result of a visible pattern established on a date earlier than July of 1998, then he should have requested EEO counseling on such earlier date.
Defendants further argue that plaintiff Bostron should not be allowed to litigate claims arising more than two years before he filed his claim relating to VAN M-815. In support of that argument, defendants rely on 42 U.S.C. § 2000e-5(g)(1) which provides in pertinent part as follows:
If the court finds that the respondent [in a civil rights action] . . . is intentionally engaging in an unlawful employment practice . . ., the court may enjoin . . . such unlawful employment practice, and order such affirmative action as may be appropriate, which may include . . . reinstatement or hiring of employees, with or without back pay . . . Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission . . .Id.
Courts have held that the two-year cap on back pay contained in § 2000e-5(g) is not a statute of limitations. Miller v. Miami Prefabricators, Inc., 438 F. Supp. 176, 181 (S.D.Fla. 1977). Rather, that provision was inserted by Congress in an attempt to limit the back pay which could be recovered from employers who have been engaged in discrimination for many years. Id. Courts have further held that liability of the employer for back pay may be based on acts occurring outside the two-year period if a current violation is shown. Thompson v. Sawyer, 678 F.2d 257, 291 (D.C. Cir. 1982); Crawford v. Western Elec. Co., Inc., 614 F.2d 1300, 1309 (5th Cir. 1980).
In advancing the argument that § 2000e-5(g)(1) bars liability for claims arising more than two years before an actionable discriminatory act, defendants misconstrue this statutory provision. The statute in question is not a statute of limitations. Rather, it serves only as a limit to the recovery of back pay by a plaintiff after a finding of discrimination has been made. As noted hereinabove, courts considering the question have held that it is proper to allow claims of illegal discrimination to be made which fall outside the two-year period established by the statute. See Thompson, 678 F.2d at 291; Crawford, 614 F.2d at 1309. Accordingly, this Court concludes that if plaintiffs can make a prima facie showing as to denials of promotion occurring more than two years before July 19, 1998, claims based on such denials may be presented to the jury at the trial.
For the reasons stated, defendants' motion in limine will be denied as to all of Bostron's claims that he was denied promotions because of his race and sex.
(b) Plaintiff duBois
For similar reasons, plaintiff duBois is entitled in this case to rely on a theory of continuing violation to seek a recovery for the three positions listed by him. The positions in question are VAN M-812, VAN M-815 and VAN M-859. Defendants concede that his claim based on the VAN M-815 position is actionable, but argue that his claim based on the VAN M-859 is barred because of his failure to timely initiate EEO counseling. For the reasons stated hereinabove, duBois' timely request for counseling as to the VAN M-815 position permits him, under the continuing violation theory, to seek a recovery for his non-selection for the VAN M-859 position.
Defendants also argue that duBois' VAN M-812 claim is not actionable because that VAN included selections of three persons for three positions and because one of the selectees was a white male. The Court would disagree. While a white male was in fact selected for one of these three vacancies, it does not follow that duBois should be prohibited from undertaking to prove at the trial a prima facie case as to the other two VAN M-812 positions. The fact that a white male was one of the three persons selected is merely an evidentiary factor to be weighed by the jury. Based on evidence of systemic discrimination, plaintiff duBois will be entitled at the trial to contend that he was denied promotion to the other two VAN M-812 vacancies because of his race and/or sex.
The other two selectees for the VAN M-812 position were a white female and a black male.
For these reasons, plaintiff duBois may at the trial seek recoveries for his non-selections for the VAN M-812, the VAN M-815 and the VAN M-859 positions.
(c) Plaintiff Boyer
Defendants contend that none of the positions sought by plaintiff Boyer are actionable in this case. The Court would agree.
In its Memorandum and Order of August 18, 1999, the Court noted that whether or not plaintiff Boyer had sought EEO counseling was disputed. In his Declaration, Boyer had stated that he did timely seek counseling for two positions mentioned in vacancy announcements, and that he was in fact counseled on June 20, 1994. The Court accordingly determined that there was a dispute of material fact as to this issue.
Defendants have now presented new evidence to the Court indicating that neither one of the non-selections relied upon by Boyer is actionable. A white male was selected for the VAN H-1669 position. Plaintiff Boyer concedes that he will therefore not be able to establish a prima facie case as to this position. Boyer maintains, however, that the VAN H-1663 position is actionable.
In its Memorandum and Order of August 18, 1999, the Court ruled that the evidence of record then before the Court indicated that defendants' discriminatory conduct had prevented Boyer from making the Best Qualified List for the VAN H-1663 position. Boyer had not been awarded ten experience rating points and five performance rating points. New evidence presented by defendants indicates that even if, as claimed by Boyer, defendants' discriminatory conduct prevented him from receiving the necessary five performance rating points, he would still have not had sufficient experience rating points to be included on the Best Qualified List for the position. This evidence is conclusive.
Boyer made an error in completing his application for the VAN H-1663 position. He was not awarded ten additional experience points because he did not state that he had experience with nonexertional impairment. Boyer contends that his failure to receive the ten necessary experience points was based upon a "bogus technicality" and that, under the applicable union management agreement, he should have automatically received the ten points in question. Whether or not proof exists to support these contentions, there is no evidence in this record indicating that his failure to be awarded the necessary ten points in question was the result of discriminatory animus on the part of defendants.
Accordingly, this Court concludes as a matter of law that Boyer lacked the necessary experience rating points to make the Best Qualified List for the VAN H-1663 vacancy. He was therefore not qualified for that position. Since Boyer cannot on the record in this case prove a prima facie case of discrimination as to either one of the positions which he sought, defendants are entitled to judgment as to the claims alleged by him in the complaint.
IV Conclusion
For all the reasons stated, plaintiffs' motion in limine will be denied, and defendants' motion in limine will be granted in part and denied in part. This case may proceed to trial on the claims of plaintiff Bostron that he was denied promotions to eighty-four positions because of his sex and/or race. The case may also proceed to trial on the claims of plaintiff duBois that he was denied promotions to three positions because of his sex and/or race. However, plaintiff Boyer will not be permitted to present to the jury the claims of discrimination alleged by him in the complaint.
Accordingly, it is this ______ day of December, 1999 by the United States District Court for the District of Maryland,
ORDERED:
1. That plaintiffs' motion in limine is hereby denied;
2. That defendants' motion in limine is hereby granted in part and denied in part; and
3. That judgment is hereby entered in favor of defendants as to the claims asserted in this case by plaintiff John Boyer.