Mr. Albritton asserts that his claims with respect to the December 1991, August 1992, and May 1993 non-promotions should not be dismissed because they are part of a pattern of continuing discrimination on the part of the defendant. If Mr. Albritton establishes a continuing violation of Title VII, the claims for which he did not file timely administrative charges will not be time-barred.Shepard v. Adams, 670 F. Supp. 22, 24 (D.D.C. 1987). The rationale for the continuing violation theory is to provide a plaintiff with a remedy for past actions that continue to have a present effect.
If a plaintiff can establish a continuing violation of Title VII which sufficiently links events for which he filed a timely administrative charge (or complied with statute of limitations) with events for which he did not file a timely administrative charge (or comply with the statute of limitations), the latter claims will not be time-barred. See Shepard v. Adams, 670 F. Supp. 22, 24 (D.D.C. 1987); see, e.g., Hatcher-Capers v. Haley, 786 F. Supp. 1054, 1060 (D.D.C. 1992). The theory of continuing violation must be guardedly employed, however, because "within it are seeds of destruction of statutes of limitation in Title VII cases.
Moreover, the District of Columbia Circuit has clearly held that a plaintiff may not rely on the continuing violation theory where she was aware of the discriminatory conduct at the time it occurred.See Taylor v. Federal Deposit Ins. Corp., 132 F.3d 753, 765 (D.C. Cir. 1997) ("[f]or statute of limitations purposes, a continuing violation is `one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period'") (citation omitted); see also Albritton v. Kantor, 944 F. Supp. 966, 971 (D.D.C. 1996) ("[i]f the employee could not perceive discrimination until a series of acts occurred, then the employee should be able to plead the earlier, [otherwise] time-barred claim") (citing Berry, 715 F.2d at 981; Sheppard v. Adams, 670 F. Supp. 22, 25 (D.D.C. 1987)). Here, defendant has demonstrated that plaintiff had knowledge of the alleged discriminatory practices being carried out by the defendant long before February 2000, when she first initiated contact with an EEO Counselor, because it is apparent from plaintiff's own testimony that she was aware she was the victim of discrimination as early as 1994, and certainly by 1998, two full years before she sought EEO counseling. Regarding the fact that she did not receive a QSI in 1994, plaintiff testified that she knew that males had received QSIs, although she did not complain at that time.
Moreover, the same discrimination must pervade the series of events. It is not sufficient to simply show "a series of allegedly discriminatory actions against the same employee, even with the same alleged motive such as . . . discrimination."Norman v. Gannett, 852 F. Supp. 46 (D.D.C.1994) (citing Shepard v. Adams, 670 F. Supp. 22, 24 (D.D.C.1987)).Id. at 50.
In order for present employment practices to give rise to a continuing violation thereby permitting recovery for past conduct, there must be an interrelation between the current practice and the past conduct. See Shepard v. Adams, 670 F. Supp. 22, 24 (D.D.C. 1987); Scott v. Claytor, 469 F. Supp. 22, 25 (D.D.C. 1978). None of the present allegations of disparate treatment are related in any manner to the past sexual harassment conduct.