Opinion
Case No. 02-4083 JAR
November 7, 2002
MEMORANDUM ORDER DENYING DEFENDANT'S MOTION FOR PARTIAL DISMISSAL
In this action, Plaintiff Yolanda Taylor asserts claims under Title VII of the Civil Rights Act of 1964 for race discrimination and retaliation; and for breach of an oral agreement to consider her for all "Business Function Line job openings." Defendant Anthony J. Principi, Secretary of Veterans Affairs, filed a Motion for Partial Dismissal Due to Lack of Jurisdiction (Doc. 4) of Plaintiff's claims to the extent they arise from Plaintiff not being hired for a Budget Analyst job position originally posted on December 24, 1997, which Defendant calls "Budget Analyst Potential GS-11." Defendant contends that the Court has no jurisdiction of any such claim because Plaintiff did not file an EEOC charge concerning her not being hired for this position, and thus Plaintiff failed to administratively exhaust any such claim. Defendant not only seeks dismissal of any such claim, but asks, in its Reply (Doc. 6) that ". . . any allegations of discrimination regarding that position be stricken from the complaint due to lack of jurisdiction."
42 U.S.C. § 2000e et seq.
Plaintiff's Response and Objection to Motion for Partial Dismissal, consistent with the averments in her Complaint, is that "[t]he discrimination occurred in the new Budget Analyst position when the Agency restricted the number of people who could apply for that position by limiting that job to only those in the Business Function Line." This is the Budget Analyst position that Defendant calls "Budget Analyst No Potential," which Defendant alleges was announced in November 1998 and restricted to employees of the "Business Functional Line at Topeka, VA." It is evident that Plaintiff's claim is for discrimination in not being hired for the position announced in November 1998; and not the position announced in December 1997. And, there is no dispute that Plaintiff filed an EEOC charge based on the position announced in 1998.
Because Plaintiff asserts no claim based on the position announced in December 1997, the Court denies Defendant's motion for partial dismissal of any such claim as moot. The Court further denies Defendant's motion to strike the averments in Plaintiff's complaint concerning the position announced in December 1997 and subsequent events. These averments are material to Plaintiff's claim that she was qualified for the position announced in 1998 and are also material to her claim that Defendant breached an oral agreement to consider Plaintiff for all Business Function Line job openings.
IT IS THEREFORE ORDERED that Defendant's Motion For Partial Dismissal is DENIED.
IT IS FURTHER ORDERED that Defendant's request that allegations be stricken from Complaint is DENIED.
IT IS SO ORDERED.