author: JOHN GARRETT PENN, District Judge.

text:
    Daniel DIAMOND, et al., Plaintiffs, v. Floretta McKENZIE, et al., Defendants.
    Civ. A. No. 84-0241.
    United States District Court, District of Columbia.
    Jan. 22, 1985.

      Matthew Bogin, Washington, D.C., for plaintiffs.
    Kathleen Carey, Asst. Corp. Counsel, Washington, D.C., for defendants.
   MEMORANDUM OPINION

JOHN GARRETT PENN, District Judge.

The plaintiffs filed this action pursuant to the Education for the Handicapped Act (EHA), 20 U.S.C. § 1400 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Civil Rights Act of 1871, 42 U.S.C. §§ 1983 and 1985(3). Plaintiffs seek to have the Court enter a permanent injunction requiring the District of Columbia Public Schools (DCPS) to place and fund the minor plaintiff Daniel Diamond (Daniel), at the Vanguard School in Lake Wales, Florida. The case is now before the Court on defendants’ motion to dismiss and after a trial on the merits.

I

The underlying facts are as follows: Daniel is a 17 year old severely learning disabled and severely emotionally disturbed child and as such he is a qualified handicapped child as defined by the EHA, 20 U.S.C. § 1401(1). From September 1980 through June 1983, he attended the Lab School of Washington, formerly the Kingsbury Lab School. His placement at that school was funded by DCPS. In August 1983, DCPS referred Daniel to three day placements, the Chelsea School, the Accotink Academy, and the Frost School. Eventually, all three schools refused to accept Daniel.

On August 30, 1983, Dr. Carol G. Johnson, Supervising Director, Assessment and Placement, DCPS, wrote Mrs. Diamond and advised her that intake procedures for Chelsea School could be scheduled for the week of September 6 through September 9. Dr. Johnson went on to state, “[w]e appredate the effort you have extended thus far to assist us in locating an appropriate placement for your son, and we solicit your continuing efforts to secure a speedy placement for him for the 1983-84 school year.” The following day, August 31, 1983, Ms. Van Burén, Case Manager, Region D, addressed a memorandum through Dr. Johnson to Dr. Robert Burch, Director of the Student Hearing' Office, requesting a due process hearing on the grounds that Mrs. Diamond had failed to cooperate with DCPS placement efforts. A hearing was held on November 4, 1983, and the hearing officer filed her determination on November 18. November Determination. The hearing officer denied the complaint and found that, “DCPS has wasted the time and money of both parties by pursuing this course of action with little or no evidence to substantiate its charges.” Id. at 5. She also noted that a hearing on the appropriateness of the proposed placement, the Wilson Resource Program or in the alternative, Chelsea School, would be held on November 18, 1983. DCPS had proposed those two programs in a Notice of Proposed Change in Educational Placement approved by Dr. Johnson and dated August 31, 1983.

Shortly thereafter, DCPS -requested the hearing officer to continue the November 18 hearing on the grounds that “[t]he placement of Aug. 31, 1983 for Chelsea School has been revoked.” The hearing officer denied the request on November 15 noting that the proposal for placement at the Wilson Resource. Program had not been withdrawn.

A hearing was held on November 18, to determine whether the DCPS proposed placement, the Wilson Resource Program, was an appropriate placement. The hearing officer filed her determination on December 6, 1983. December Determination. The hearing officer observed that DCPS did not present any testimony regarding the Wilson Resource Program and that accordingly, DCPS failed to meet its burden of proof. Significantly, the hearing officer concluded that, “it is unclear why DCPS even chose to proceed given the fact that it is still in the process of referring Daniel for placement ... and given the fact that these [referrals] are Level VI Placements [full-time city wide or private schools] and that the Wilson program is a Level II [Resource Room — on site direct service to students in a regular school or career center] placement.” Id. at 4. The hearing officer then went on to direct DCPS to consider a residential placement. In doing so, she noted that the DCPS Confidential Report, prepared by Dr. McElroy, recommended placement in a “fulltime special education placement in a structured program for learning disabled adolescence with secondary emotional difficulties” and that the Lab School’s progress report recommended “mandatory placement in a residential facility”. The hearing officer also observed that she had “requested the written submissions on residential placement because so much of the testimony presented on behalf of the parent focused on the need for residential placement and yet. DCPS had not addressed that issue.” She noted that although she could not recommend a specific placement, the decision “can give DCPS direction with regard to the elements of an appropriate placement, and the consideration of residential placement is such an element.” Id. at 4. She further observed that DCPS had stated that “one or more of several events must occur in order to refer a case to the Residential Review Committee (Committee), i.e., a signed written request by a parent, a signed written report by a professional, or a signed written report by the DCPS’ multidisciplinary team.” The hearing officer correctly concluded that those requirements are not contained in the Rules of the District of Columbia Board of Education Board Rules. The hearing officer remanded the case back to DCPS with the direction that on or before January 5, 1984, it was to propose another placement, “consistent with this decision”. Id. at 5. She further stated that “[i]n the event residential placement is not recommended, DCPS must include with the Notice of Proposed Placement, the report of the Residential Review Committee indicating, at a minimum, the criteria used to determine eligibility for residential placement”. On January 5, 1984, DCPS wrote Mrs. Diamond over the signature of Ms. Van Burén and advised her that “in compliance with the Hearing Officer’s Determination of 11-18-83, Daniel’s case was presented to the Residential Review Committee 12-20-83. The Residential Review Committee found no justification for residential placement for your son.” Also included with that letter was a Notice of Proposed Placement proposing Daniel’s placement at the Leary School. Plaintiffs filed this action on January 23, 1984. Plaintiffs had unilaterally placed Daniel in the Vanguard School at Lake Wales, Florida, in September 1983.

II

Prior to addressing the merits, the Court must address the motion to dismiss filed by the defendants.

The defendants contend that this case should be dismissed because the plaintiffs are not “aggrieved” by the findings of the hearing officer or the state education agency, see EHA 20 U.S.C. § 1415(e)(2), and because the plaintiffs have failed to exhaust their administrative remedies. These arguments must be rejected.

First, the plaintiffs had requested the hearing officer to recommend a residential placement, but the hearing officer declined to do so, apparently because she felt that such a recommendation was beyond her power. It was obvious, however, that she felt that DCPS should consider a residential placement. In her determination, she observed that, “[ajlthough this decision cannot recommend a specific placement, it can give DCPS direction with regard to the elements of an appropriate placement, and the consideration of residential placement is such an element.” December Determination at 4. In making those comments, the hearing officer noted that she “had requested the written submissions on residential placement because so much of the testimony presented on behalf of the parent focused on the need for residential placement and yet DCPS had not addressed that issue.” Id. at 4. In remanding the matter back to DCPS, the hearing officer directed the school system to propose a placement on or before January 5, 1984, and, “in the event residential placement is not recommended, DCPS must include with the Notice of Proposed Placement, the report of the Residential Review Committee indicating, at a minimum, the criteria used to determine eligibility for residential placement.” Id. at 5.

Thus, it is clear that the hearing officer understood the plaintiffs to be seeking a residential placement but that she nevertheless declined to direct such a placement because she concluded that she did not have the power to do so. Clearly then the plaintiffs are aggrieved as that term is used in the EHA and thus they are properly before this Court.

Second, the contention that the plaintiffs have failed to exhaust their administrative remedies must also be rejected. Defendants had originally proposed placement in the Wilson Resource Program with an alternative placement at Chelsea School. See Notice of Proposed Change in Education Program dated August 31, 1983. After the hearing officer scheduled a hearing on the appropriateness of the above two proposed placements, subsequent to her rejection of defendants’ claim that Mrs. Diamond had been uncooperative, DCPS requested a postponement of the hearing on the grounds that the placement of August 31, 1983, for Chelsea had been “revoked”. See Van Burén Memorandum dated November 13, 1983. In her memorandum, Ms. Van Burén noted that referrals had been made to the Leary School. The hearing officer denied the request noting that DCPS had also proposed the Wilson Resource Program, a matter which would be addressed at the hearing. The hearing, which was to address the DCPS proposed placement at the Wilson Resource Program, went forward on November 18,1983, but DCPS presented nothing in support of that placement. Indeed, the evidence before the hearing officer reflected that Daniel required a residential placement. When the hearing officer entered the December Determination, she properly required DCPS to consider a residential placement and to set forth the criteria used in considering that issue if DCPS concluded that a residential placement was not necessary. DCPS rejected the request for residential placement but did not set forth the criteria used to consider the placement or the grounds upon which the placement was denied. All DCPS did was to state that the request had been submitted to the Residential Review Committee which had found “no jüstification for residential placement for [Daniel].” Van Burén letter dated January 5, 1984. The letter is woefully short of the requirements of the Hearing Officer. It was after that action that the plaintiffs instituted this action.

The above facts justify plaintiffs’ conclusion that further resort to the administrative process would be futile.

Moreover, on August 30,1983, DCPS had commended Mrs. Diamond for her efforts to assist the school system in locating an appropriate placement, and on August 31, 1983, DCPS had initiated a due process hearing which was to address Mrs. Diamond’s alleged failure to cooperate. The hearing officer had characterized the DCPS complaint as a waste of time noting that most of the problems encountered resulted from the failure of DCPS to communicate with the Diamonds. DCPS then thereafter attempted to postpone a second due process hearing, and when the request was denied, DCPS presented nothing in support of its proposed placement. Finally, DCPS failed to comply with the direction of the hearing officer’s December Determination.

The claim that plaintiffs failed to exhaust their administrative remedy must be denied since the above is ample evidence that further administrative proceedings were futile.

Ill

The denial of the defendant’s motion to dismiss does not put to rest the question whether some of the claims asserted by the plaintiffs should be dismissed. It is clear that the primary reason the plaintiffs brought this action is to enforce rights guaranteed by the EHA, however, they have also asserted claims under the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Civil Rights act of 1871, 42 U.S.C. §§ 1983 and 1985(3), and the Fifth Amendment to the Constitution of the United States. In their claims for relief, they asked the Court to certify this as a class action and to enjoin defendants from operating the Residential Review Committee. They also named several of the defendants in their individual and official capacities, and they request both compensatory and punitive damages. Finally, they ask the Court to award attorney’s fees pursuant to 42 U.S.C. § 1988 and 29 U.S.C. § 794a.

This action was filed in January 1984. Subsequent to the filing of the complaint, and indeed, subsequent to the filing of the motion to dismiss and the trial in this case, the Supreme Court addressed the issue whether plaintiffs in cases brought under the EHA can also assert claims under the above statutes. Smith v. Robinson, _ U.S. _, 104 S.Ct. 3457, 82 S.Ct. 746 (1984). The Supreme Court concluded that Congress intended the EHA “to be the exclusive avenue through which a plaintiff may assert an equal protection claim to publicly financed special education.” Id., 103 S.Ct. at 3468. The Supreme Court noted that “where the EHA is available to a handicapped child asserting a right to a free appropriate public education, based either on the EHA or the Equal Protection Clause of the Fourteenth Amendment, the EHA is the exclusive avenue through which the child and his parents or guardian can pursue their claim.” Id. at 3470. Finally, the Supreme Court observed that “[w]here § 504 [29 U.S.C. § 794] adds nothing to the substantive rights of a handicapped child, we cannot believe that Congress intended to have the careful balance struck in the EHA upset by reliance on § 504 for otherwise unavailable damages or for an award of attorney’s fees.” Id. at 3474. The Supreme Court noted, however, that the decision in Smith is limited and does not address the case where the EHA is not available or where the Rehabilitation Act guarantees substantive rights not available under the EHA. Id. at 3474.

The trial of this case was bifurcated; the trial already held addressed the EHA claims, while a future trial was to address the remaining claims. While the Court did not specifically address the claims asserted under the statutes other than the EHA, it nevertheless may review the entire record to determine whether the claims asserted in the non-EHA counts are truly separate and distinct claims from those asserted under the EHA. After reviewing the record and the claims asserted in the non-EHA counts, the Court concludes that the other statutes and the Fifth Amendment really add nothing to plaintiff’s substantive rights under the EHA.

Plaintiffs allege that the defendants have denied them due process, but these claims are virtually identical to the claims asserted under the EHA. See 104 S.Ct. at 3468. They complain that the Residential Review Committee deprives them of rights guaranteed by the Fifth Amendment and the EHA. Again, these are matters properly addressed in an action under the EHA. Plaintiffs contend that the actions of the defendants, for example, in complimenting Mrs. Diamond on one day and charging her with bad faith the following day, should permit plaintiffs to maintain this action under the non-EHA statutes, but, again, all of these matters can be addressed by the hearing officer in an administrative hearing under the EHA, or by this Court under the same statute. The Court concludes therefore that these plaintiffs may not assert claims under any statute other than the EHA. Those claims asserted under the Fifth Amendment, the Civil Rights Act of 1871, and the Rehabilitation Act of 1973, will be dismissed, sua sponte, based upon the authority of Smith v. Robinson, Tschanneral v. District of Columbia Board of Education, 594 F.Supp. 407, 409 (D.D.C.1984). This means that plaintiffs may not recover damages against defendants, and it means that plaintiffs may not recover attorney’s fees under the above statutes. It does not mean, however, that the plaintiffs may not seek attorney’s fees where they can establish that the defendants are guilty of bad faith or vexatious conduct.

The Court will dismiss the District of Columbia Board of Education as a party in this action since the Board is not a suable entity. Tschanneral, supra, at 409.

IV

At the hearing on the merits, the plaintiffs argued that Daniel requires a residential placement and they presented evidence to establish that Vanguard School is an appropriate placement. The defendants contend that Daniel does not require a residential placement and they presented evidence seeking to establish that the Leary School is an appropriate placement. After considering all of the evidence, the Court finds as a fact and concludes as a matter of law that Daniel requires a residential placement and that the Vanguard School represents an appropriate placement.

The record in this case consists of the testimony and documents presented at the hearing before this Court. The record also includes the record of the administrative proceedings. 20 U.S.C. § 1415(e)(2). The decision of the Court must be based on a preponderance of the evidence. Id. In this connection, it is noted that the plaintiffs offered evidence during the administrative hearing held on November 18, 1983, which would support a residential placement. At that time, the hearing officer was asked to determine whether the DCPS proposed placement at the Wilson Resource Center was appropriate, but DCPS presented no evidence in support of that placement. Thus, all of the evidence before the hearing officer focused on a residential placement.

The Court finds the evidence offered by the plaintiffs to be persuasive. Dr. Suter, who testified at the administrative hearing and before this Court, has known Daniel for over six years. Dr. Suter is an Adult and Child Psychologist. She testified that in her opinion Daniel requires a residential placement. She further testified that in her opinion Vanguard is “highly appropriate”. She also observed that Daniel has been at Vanguard since September 1983 and has made considerable progress. On the other hand, it was her opinion that Leary is not appropriate because Daniel requires a 24 hour structured program. While DCPS has proposed the Leary program and family therapy, Dr. Suter gave her opinion that family therapy is inappropriate at this time.

Daniel’s mother testified at the administrative hearing and at the trial before this Court. She stated that originally Vanguard was not sure that Daniel would work out in the school but had agreed to give him a trial. She sees a “big change” since his placement at Vanguard and it is her opinion that his placement there is appropriate and beneficial. Mrs. Diamond conceded that she had no real interest in having Daniel placed at Leary.

Two other witnesses who testified stated that, in their opinion, Daniel required a residential placement. Of these two, the most persuasive was Helen Levine who worked at the Lab School and had personal knowledge of Daniel. She is quite familiar with his case and has had an opportunity to observe him at the Lab School.

The defendants called the director of the Leary School to testify in support of their contention that Leary represents an appropriate placement. Mr. Mead, the Director, had not seen Daniel and therefore any opinion he would have given would be based on the various reports prepared by the schools. Mr. Mead really did not give an opinion on the question of an appropriate placement for Daniel.

The defendants also called Dr. Silver-man, a Clinical Psychologist, as a witness. He served as a member of the Residential Review Committee and his opinion is limited to what he read rather than a personal observation of Daniel. Moreover, cross-examination established that Dr. Silverman may not have had access to all records relating to Daniel. For example, he did not review Dr. Suter’s report at the time he sat on the Committee. Dr. Silverman’s testimony supported plaintiff’s claim that the members of the Residential Review Committee are asked to make a determination based upon less than adequate records.

Two other witnesses called by the plaintiffs ventured no opinion, although one, Dr. Young, had visited Vanguard School and had seen another child placed at that school by DCPS. The other person, Ms. Van Burén, was not asked for an opinion. She is familiar with Daniel and had also visited Vanguard. Ms. Van Burén presented the case before the Residential Review Committee.

It is clear that the witnesses called by the plaintiff have a greater familiarity with Daniel than those called by the defendants. Moreover, two of the witnesses have had a full opportunity to observe Daniel over a period of years. In addition, Daniel has been at Vanguard and is making progress, a factor which cannot be overlooked. As noted, plaintiffs have established by a preponderance of the evidence that Daniel requires a residential placement and that the Vanguard School represents an appropriate placement. The Court concludes that DCPS should place and fund Daniel at the Vanguard School. The Court further concludes that the Leary School does not represent an appropriate placement.

V

Two additional issues must be addressed.

First, the defendants have taken the position that the Residential Review Committee has official status and that parents seeking to have their children considered ■for residential placement must satisfy the criteria allegedly established by the Committee. Defendants are wrong on both counts. The Residential Review Committee has no official status or standing under the EHA, the regulations promulgated thereunder, or indeed, the Board rules. Where the record before the hearing officer demonstrates that a residential placement is required, the hearing officer may direct DCPS to propose an appropriate residential program and that determination is not subject to review or veto by the Residential Review Committee. While DCPS and the defendants may utilize such a committee as an internal committee to review requests for residential placements, parents may not be required to present cases before the committee or to petition the committee as though the committee represents an additional level of review under the EHA. Hearing officers need only look to DCPS and the defendants when entering determinations and requiring appropriate action. To hold otherwise would be to subject children and their parents to an additional step not required by the EHA.

Moreover, this Court can see no valid reason why a hearing officer cannot consider a placement proposed by the parents as well as one proposed by DCPS. This case is a perfect example of the delays which may be caused by limiting the consideration which hearing officers can give to parent proposals. DCPS purported to recommend the Wilson Resource Program for Daniel. The hearing officer scheduled a hearing to consider that proposal. The plaintiffs argued that Daniel requires a residential placement. In such a case, it is logical and reasonable for the hearing officer to hear evidence concerning the DCPS proposed placement and evidence concerning the plaintiffs’ proposed placement. This tends to focus the issues which the hearing officer must address. Plaintiffs should not be limited to the presentation of a negative argument; rather, they may present evidence in support of alternative programs they contend the child requires. Thus, if the hearing officer determines that the DCPS proposed placement is inappropriate, she may then consider the parents’ proposed placement and direct such a placement or program if satisfied that it is appropriate. Such a procedure would have the effect of shortening the overall administrative process and saving time and expense for DCPS, the parents, and the hearing officer.

This does not mean that the hearing officer must rule in favor of DCPS or the parents. Indeed, in a given ease, the hearing officer may determine that neither side has made out a case and may conclude that the matter must be remanded for additional studies or the submission of additional evidence. Here, when DCPS presented no evidence in favor of its proposed placement, and the plaintiffs presented evidence favoring a residential placement, the hearing officer could have directed a residential placement without referring the matter back to DCPS if she determined that such action was warranted and if the evidence established that Daniel required a residential placement. Furthermore,' the hearing officer was not limited to making a determination that Daniel requires a residential placement. If appropriate, she could have determined that a specific placement is appropriate. For example, the hearing officer could have determined that a residential placement is required and that the Vanguard School is an appropriate placement. Depending upon the facts developed at the hearing, the hearing officer could then direct the placement supported by the evidence, or afford DCPS a reasonable opportunity to propose an alternative residential placement.

Second, is the issue of attorneys’ fees. While the Supreme Court has ruled that the EHA does not provide for attorneys fees and that parents may not seek such fees under the Rehabilitation Act of 1973 or the civil rights statutes, this Court does not read Smith v. Robinson, as holding that a Court, in the appropriate case, may never award attorney’s fees. Rather, all the Supreme Court has done is to establish that there is no statutory basis to award fees in an EHA case. A court is still free to award fees under the exception to the “American Rule” if it determines that a party has acted in bad faith. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); F.D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). As the Supreme Court has observed, “[w]e have long recognized that attorneys’ fees may be awarded to a successful party when his opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” F.D. Rich, 417 U.S. at 129, 94 S.Ct. at 2165. This is such a case.

DCPS commended Daniel’s mother for her cooperation and assistance in seeking to place him one day, and the following day initiated a due process hearing on her failure to cooperate. The hearing officer concluded that “DCPS has wasted the time and money of both parties by pursuing this course of action with little or no evidence to substantiate its charges.” November Determination at 5. Then DCPS allowed the second due process hearing to go forward even though it was not prepared to present evidence in support of its recommended placement. That action lead to the filing of this law suit based on plaintiff’s determination that further resort to the administrative process would be futile. Plaintiff should not now be required to bear the expenses of this litigation. The Court finds as a fact and concludes as a matter of law that DCPS and the defendants acted in bad faith in pursuing the administrative actions leading up to the filing of this action; accordingly, this case represents an exception to the American Rule and as such defendants shall be responsible for plaintiffs’ attorney’s fees and costs.

An appropriate order consistent with this Memorandum Opinion has issued.

      . The motion was filed just prior to the trial in this case.

      . This Memorandum Opinion constitutes the Court’s ruling on the motion to dismiss and the Court’s findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.

      . Daniel has also attended and been funded by DCPS at the Christ Church Child Center at the Saint Maurice School.

      . Apparently, the hearing officer concluded that at least a part of the problem was caused by the failure of DCPS to communicate with the plaintiffs.


source: Caselaw Access Project

author: WILLIAM W. SCHWARZER, District Judge.

license: Public Domain

text:
    George KILLINGSWORTH, Plaintiff, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
    No. C-84-6395-WWS.
    United States District Court, N.D. California.
    Jan. 23, 1985.

      George Killingsworth, in pro per.
    Lynn K. Richardson, Asst. U.S. Atty., San Francisco, Cal., for defendant.
   ORDER

WILLIAM W. SCHWARZER, District Judge.

Plaintiff George Killingsworth brings this action against defendant Department of Health and Human Services alleging race and age discrimination in a job selection procedure in violation of Title VII of the Civil Rights Act, as amended, 42 U.S.C. §§ 2000e et seq. and section 15 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq. Defendant moves to dismiss, or in the alternative, for summary judgment.

FACTS

Plaintiff is a white male, forty-five years old. He began working with defendant in January, 1977, as a GS-12 Refugee Resettlement Program Specialist in the Region IX Office of Refugee Resettlement (“ORR”). Plaintiffs first position was a temporary (one-year) appointment in the competitive service. In January, 1978, his position was converted to a GS-12 Refugee Specialist, an excepted service Schedule A position, with a term not to exceed September 30, 1981. He remained in this position, title of which subsequently changed to Program Specialist, throughout his tenure with defendant.

On August 28, 1980, the defendant’s Regional Personnel Office (“RPO”) announced a vacancy for a position as a GS-13 Refugee Resettlement Specialist in the Region IX ORR. The vacancy announcement, # OS-80-247, specified that applications would be accepted from defendant’s permanent employees in the competitive service. On September 12, 1980, plaintiff submitted an application for this position. In a cover letter accompanying his application, he stated “I am aware that because I am a Schedule A employee, I do not technically meet the eligibility criteria stated in the announcement.” He also noted in the cover letter that the Region IX Principal Regional Official (“PRO”) had informed plaintiff earlier that he hoped to devise a way of allowing experienced Schedule A Program Specialists to apply for the new position. However, in order for excepted service employees to be considered for positions in competitive service, they must first compete through the Office of Personnel Management’s open examination procedure. The PRO realized, after his initial exchange with plaintiff, that the OPM procedure would take two months to complete. Because of pressing management needs to fill the position, the PRO decided against using the OPM certification procedure for excepted service employees and to limit selection to those already in the competitive service. In his cover letter, plaintiff also noted that he had been in the Senior Level GS-13 register for the past four years, but that his rating expired on August 21, 1980, just eight days prior to the publication of the vacancy announcement # OS-80-247.

The vacancy announcement closed on September 12, 1980. By letter dated September 17, 1980, RPO informed plaintiff that he was not an eligible candidate for position # OS-80-247 because he did not have the requisite competitive civil service status. On September 26, 1980, the position was filled by an Asian-American female.

Plaintiff contacted an Equal Employment Opportunity (“EEO”) counselor concerning his non-selection for the position on January 15, 1981. At the same time, he also sought counseling concerning his non-selection for three other vacancies within ORR, which had been filled in December 1980, and his impending separation by reduction-in-force (“RIF”). As to all these matters, he alleged that defendant had discriminated against him on the basis of race and age. The plaintiff’s complaints were not resolved at the informal counseling stage, and on February 27,1981, he filed a formal EEO complaint with defendant, alleging discrimination in the four non-selections and the RIF action, which had become effective on February 23, 1981. He alleged that the vacancy announcements were constructed “in such a fashion as to exclude non-asians from eligibility to apply.” EEO complaint, p. 2. He also alleged that the result of his non-selection for vacancies “skewed the age distribution of the ORR staff to a point where most were considerably under 40 years of age.” EEO complaint, p. 3. Because additional information relevant to his formal complaint had to be obtained, defendant did not consider the EEO complaint filed until March 24, 1981.

In the meantime, on March 9, 1981, plaintiff filed an appeal with the Merit Systems Protection Board (“MSPB”) concerning his separation by RIF, again alleging that defendant had discriminated against him. In light of this MSPB appeal, which involved issues similar to the plaintiff’s EEO complaint, defendant rejected the plaintiff’s EEO complaint as moot on May 11, 1981. On May 28, 1981, an MSPB hearing was held on the RIF issue. In his subsequent decision of June 29,1981, the MSPB Presiding Official affirmed the RIF action, finding that defendant had properly applied RIF procedures in separating the plaintiff and that no discrimination had occurred. The non-selection issues were explicitly excluded from coverage in that decision. By decision of May 3, 1982, the full MSPB denied plaintiff’s petition for review of the Presiding Official’s decision.

Plaintiff then sought review by the Equal Employment Opportunity ■ Commission (“EEOC”) of the MSPB’s decision and defendant’s rejection of his EEO complaint concerning the four non-selections. In its decision dated April 13, 1983, the EEOC affirmed the MSPB?s decision finding no discrimination in the RIF action, but remanded the discrimination allegations concerning the four non-selection issues to defendant. On August 5, 1983, defendant accepted two of the non-selection issues for EEO complaint processing, but rejected the other two as untimely, including the non-selection for position # OS-80-247. Plaintiff appealed to the EEOC defendant’s decision rejecting these two non-selection issues. By decision dated September 4, 1984, the EEOC affirmed defendant’s rejection of plaintiff’s complaint as to position # OS-80-247, and remanded the other non-selection issue. Plaintiff was issued a right-to-sue letter and now brings his claims regarding position # OS-80-247 before this Court. Defendant moves to dismiss or, in the alternative, for summary judgment. Because both parties rely on material submitted in addition to their pleadings, this motion is treated as one for summary judgment pursuant to Fed.R.Civ.P. 56.

DISCUSSION

Defendant moves for summary judgment on three grounds. First, defendant argues that because plaintiff did not consult an EEO counselor within the prescribed period, his complaint was properly rejected for processing by defendant as untimely. Because there are no equitable reasons for tolling the timeliness requirements, plaintiff’s claim is barred as untimely. Second, defendant argues that plaintiff cannot establish a prima facie case of discrimination because plaintiff was not eligible for the position for which he applied. Vacancy announcement # OS-80-247 was a merit promotion position, requiring competitive status. As a schedule A employee in the excepted service, plaintiff had no competitive service, and was therefore ineligible to apply. Third, defendant argues that plaintiff wilfully deceived this Court by falsely claiming that he is sufficiently indigent to proceed in forma pauperis in this matter. Defendant requests that as a sanction for this conduct, plaintiff’s complaint be dismissed with prejudice.

A. Timeliness of the Complaint

Complaints are initiated by consultation with an EEO counselor designated by the agency. 29 C.F.R. § 1613.213(a). Where, as here, the complainant is alleging discrimination in the agency’s failure to select him for a particular position, the initial consultation with an EEO counselor must take place within thirty days of the selection action by the agency. 29 C.F.R. § 1613.214(a)(l)(i). If a complainant fails to comply with this provision, the agency is not required to accept the complaint for processing. 29 C.F.R. § 1613.214(a)(1). Plaintiff alleges discrimination in defendant’s failure to select him for the GS-13 Refugee Resettlement Program Specialist position advertised in vacancy announcement # OS-80-247. Plaintiff was notified on September 17, 1980, that he was not being considered for that position. The selection for the position occurred on September 26, 1980. Plaintiff did not consult with an EEO counselor, however, until January 15, 1981, more than three months after the position was filled. Defendant therefore rejected plaintiff’s complaint as untimely. The EEOC upheld defendant’s action in its September 4, 1984, decision.

The Supreme Court held in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982), that, with regard to non-federal employees, timely filing of a discrimination charge is not a jurisdictional prerequisite to suit in federal court. Rather, the Court likened the timely filing requirement to a statute of limitations, subject to waiver, estoppel and equitable tolling. Id. Zipes applies equally to EEO complaints presented to federal agencies by employees. Ross v. United States Postal Service, 696 F.2d 720, 722 (9th Cir.1983).

Plaintiff argues that the 30-day time period should be equitably tolled. While he concedes that defendant’s “action to limit the scope of competition” occurred with the publication of the vacancy announcement, plaintiff argues that he did not become aware of defendant’s discriminatory purpose until January 5, 1981, when he discovered an allegedly damaging memorandum in his 7B personnel file. He argues that this memorandum, written on November 15, 1980, alerted him to the “continuing attempt to limit the [employment] prospects of the plaintiff (Caucasian male).” Opp. at 8. Plaintiff relies for support on Poindexter v. Federal Bureau of Investigations, 35 FEP 131 (D.D.C. Nov. 24, 1982). In Poindexter, plaintiff was placed on leave without pay by his employer agency on three occasions. On February 6, 1981, he filed an EEO complaint in which he alleged that all three instances of leave without pay were reprisals for previously filing an employment discrimination complaint. Defendant contended that the EEO complaint was not timely filed with respect to the first two actions. Plaintiff maintained, however, that he did not realize that the first two actions were reprisals until he was placed on leave without pay for the third time. The court concluded that the failure to discover that a personnel action was designed to be a reprisal is an adequate ground to toll the time limits for filing an EEO complaint with the agency. Similarly, plaintiff here argues that he did not realize the discriminatory purpose in the construction of the vacancy announcement until he discovered the memorandum in his file.

Belated discovery of the memorandum is insufficient to invoke the Zipes doctrine. Plaintiff demonstrates no correlation between the memorandum and a discriminatory reason for his non-selection. The memorandum placed in plaintiffs personnel file was not written until November 13, 1980, by an employee who was not hired until September 26, 1980. Plaintiffs application for position # OS-80-247 was rejected on September 17,1980. This memorandum could not have affected the selection which occurred in September. Moreover, plaintiffs 7B personnel file was not consulted in determining his eligibility to compete for the position. Defendant determined from the face of plaintiffs application that he was a Schedule A term employee in the excepted service, and thus ineligible for consideration for the position. See Bennett Decl. at ¶ 6.

B. Establishment of Prima Facie Case

Discrimination cases under Title VII involve two common methods of discriminatory behavior by employers. In disparate treatment cases, the employer “treats people less favorably than others because of their race, color, religion, sex, or national origin.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). In disparate impact cases, the employer uses “employment practices that are facially neutral ... but in fact fall more harshly on one group than another ....” Id. Plaintiffs claim falls in the first category.

In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), the Supreme Court enunciated the elements of a prima facie case of discrimination. Relying upon the McDonnell Douglas elements, the Ninth Circuit has summarized the general prima facie case as follows:

Plaintiff must show

(1) that he was within a protected class;

(2) that he applied for and was qualified for a job for which applications were sought;

(3) that he was rejected;

(4) that after his rejection, the employer continued to seek applicants.

Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1275 (9th Cir.1981).

If an applicant is not qualified for the job in question, he has failed to establish a prima facie case. Id.; Morita v. Southern California Permanente Medical Group, 541 F.2d 217, 219 (9th Cir.1976), cert. denied, 429 U.S. 1050, 97 S.Ct. 761, 50 L.Ed.2d 765 (1977).

Before a determination can be made as to whether an applicant is “qualified” for a position, the applicant must be eligible to compete for that position. Eligibility to compete for a merit promotion in the competitive service is limited to those with competitive status. 5 C.F.R. § 335.102. The excepted service is separate and distinct from the competitive service, and employees in the excepted service do not acquire competitive status by virtue of their appointments. 5 U.S.C. § 2102(a)(1)(A); 5 C.F.R. §§ 212.101, 302.102(b). Schedule A appointments are within the excepted service. 5 U.S.C. § 2103; 5 C.F.R. §§ 213.-101(a), 213.3101(a). Therefore, Schedule A term employees do not have competitive status which would entitle them to compete for merit promotions in the competitive service.

The GS-13 Refugee Resettlement Program Specialist advertised in vacancy announcement # OS-80-247 was a merit promotion position, requiring competitive status. As a Schedule A term employee in the excepted service, plaintiff had no competitive status. He therefore was ineligible to compete for that position. Plaintiff himself acknowledged in the cover letter accompanying his application that he did “not technically meet the eligibility criteria.” Since plaintiff was found ineligible, he could not be considered “qualified” for the position. Thus, plaintiff fails to establish an essential element of his prima facie case.

Plaintiff argues that the vacancy announcement was “unnecessarily narrowed to disadvantage (or eliminate from consideration) the prospects for more experienced non-Asian candidates for those positions.” Opp. at 10. However, the fact that employees in the excepted service could not compete for this vacancy does not demonstrate that Caucasian applicants were excluded from competition.

Because plaintiffs claim is barred as untimely, and because he fails to establish a prima facie case of discrimination, it is not necessary to address the remaining ground of defendant’s motion. For the reasons stated above, defendant’s motion for summary judgment is granted.

IT IS SO ORDERED.

      . Defendant’s argument regarding plaintiffs in forma pauperis status was raised in its Supplemental Motion to Dismiss, filed January 11, 1985. Defendant applied ex parte for an order shortening time for a hearing on the supplemental motion so that this Court could dispose of both motions on January 18, 1985. The order was granted.

      . Plaintiff attaches as an exhibit selected portions of Federal Investigation Report #DPI 81-33 which state that Sharon Fuji, Director of Region IX ORR, was given an Expert appointment by RPO in violation of civil service regulations. The report, however, does not address any irregularities in the selection procedure for vacancy # OS-80-247. Nor do the selected pages suggest any discrimination against Caucasion or older job applicants.


text:
    Christiano NEVES v. Casimir KOLASKI, Samuel Pierce.
    Civ. A. No. 82-0593 P.
    United States District Court, D. Rhode Island.
    Jan. 30, 1985.

      Paul C. Borges, Providence, R.I., for plaintiff.
    Everett C. Sammartino, Asst. U.S. Atty., Providence, R.I., Patricia Cook Profit, U.S. Dept, of Housing & Urban Development, for defendants.
   OPINION AND ORDER

PETTINE, Senior District Judge.

The present action was brought by an employee of the Providence Office of the United States Department of Housing and Urban Development (HUD), alleging employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, the United States Constitution, and Executive Order 11478. The plaintiff, Christiano Neves, filed suit in this Court on September 15, 1982. He named as defendants the Supervisor of the Providence Office of HUD, Casimir Kolaski, and the Secretary of HUD, Samuel Pierce. His complaint alleges six specific acts of employment discrimination. It asserts that: 1) his civil rights were violated when he was denied a quality step increase in 1979 notwithstanding the fact that he possessed all of the requirements (Count I, Complaint); 2) defendant Kolaski failed to comply with affirmative action requirements when he did not promote the plaintiff, a minority, who was duly qualified for a promotion (Count II, Complaint); 3) the plaintiff was discriminated against when he was not found “highly qualified” after he had applied for a position of Deputy Supervisor for Management (Count III, Complaint); 4) two highly complimentary letters were not placed in his personnel file (Count IV, Complaint); 5) the critical elements of the HUD Employee Performance Planning and Annual Performance Evaluation (EPPES) were discriminatory (Count V, Complaint); and 6) the plaintiff was discriminated against when a GS-12 classified individual was given a position as an acting supervisor (Count VI, Complaint).

The federal defendants in this action move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the portions of the plaintiff’s complaint which allege violations of the United States Constitution and of Executive Order 11478 against the Secretary on the grounds that Title VII is the exclusive remedy available to the plaintiff. They further seek dismissal of the complaint against the Supervisor of the Providence Office of HUD on the ground that he is not a proper defendant in a Title VII action. Finally, the defendants request dismissal under Fed.R.Civ.P. 12(b)(1) of Counts I through VI of the plaintiffs complaint on the theory that the plaintiffs failure to file a timely complaint of discrimination with the appropriate federal agency deprives this Court of subject matter jurisdiction over the suit. In the alternative, the government seeks summary judgment against the plaintiff, pursuant to Fed.R.Civ.P. 56, on the ground that the plaintiff has failed to allege a continuing violation of Title VII that would effectively suspend the time limitations for the filing of an administrative complaint.

I Background of the Case

On May 6, 1982, the plaintiff sent a letter complaining of employment discrimination by HUD to the Equal Employment Opportunity [EEO] Counselor of the Providence Service Office. The complaint identified several incidents of alleged discrimination which are the basis of Counts I through V of the instant action. In addition, Neves complained of two additional discriminatory acts which are not asserted in this action. With regard to the allegations which are the subject of this litigation, the plaintiff has conceded that he was aware of these alleged discriminatory acts for some time before he discussed them with the EEO Counselor. Specifically, Neves knew on February 9, 1981 that his nomination for a Quality Step Increase had been returned; he was aware before October 7, 1979 that he had not been selected to the Best Qualified List for the position of Deputy Supervisor for Management for the Providence Office; and he first believed on or about August 11, 1980, that his supervisor had suppressed certain complimentary letters. The plaintiff has further conceded that the EPPES format of which he complained has not been used to evaluate his performance since September 30, 1980.

On June 3, 1981, Neves filed a formal complaint of discrimination with the Secretary of HUD. In addition to the allegations of his May 6 letter, Neves asserted the alleged discriminatory incident which is the basis of Count VI of his district court complaint. HUD’s Assistant Secretary for Fair Housing and Equal Opportunity issued a final agency decision regarding Neves’ complaint on September 30, 1981. The agency rejected the allegations represented in Counts I through V of the district court complaint as having been untimely brought to the attention of an EEO Counselor. It also rejected the charge forming Count VI of the complaint due to Neves’ failure to discuss the incident with an EEO Counselor at any time. The two allegations which Neves is not pursuing in the instant suit were accepted by the agency for further processing.

Neves appealed the agency decision to the Equal Employment Opportunity Commission on October 25, 1981. In August of 1982, the EEOC reversed the agency’s decision to reject the allegations contained in Counts I through V as untimely. It reasoned that because the agency had accepted for processing two recent charges of discrimination, the other untimely filed charges should be considered part of a pattern of continuing discrimination, and thus be accepted for processing as well. On June 21, 1984, the EEOC reversed the August 1982 decision and found that the four allegations in Neves’ administrative complaint were properly rejected by the agency as “independent and discrete acts which should have been discussed with the EEO Counselor within 30 days of their occurrence.” Those allegations are contained in Counts I through V of the instant complaint.

II. Motion To Dismiss Claims Based on the Constitution and Executive Order 1U78

As an initial matter, the federal defendants seek dismissal of the claims against the Secretary which are based on the Constitution and Executive Order 11478. In' support of their plea, they assert that Title VII of the Civil Rights Act of 1964 is the exclusive remedy available to a federal employee to redress alleged employment discrimination. The United States Supreme Court disposed of the very issue defendants raise in the case of Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). I find that the holding of that opinion is wholly applicable to the case before me.

In Brown, the Court held that Section 717 of the Civil Rights Act of 1964, as added by § 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 provides the exclusive judicial remedy for claims of discrimination in federal employment. Id. at 833, 96 S.Ct. at 1968. The Act allocates, “a careful blend of administrative and judicial enforcement powers.” Its “balance, completeness and structural integrity” indicate that Congress intended it to serve as the sole remedy for discrimination against federal employees. Id. at 834, 96 S.Ct. at 1968. The plaintiff may not, therefore, circumvent the remedial scheme of Title VII through pleading a separate cause of action under the Constitution or Executive Order 11478. See id.

III. Defendant’s Motion to Dismiss Plaintiffs Complaint and Alternative Motion for Summary Judgment

The federal defendants argue that the plaintiffs action should be dismissed on the ground that he failed to meet the EEOC’s requirements for the timely filing of a discrimination complaint as set forth in their administrative regulations, at 29 C.F.R. § 1613 et seq. They assert that such an omission deprives this Court of subject matter jurisdiction over the plaintiff’s suit. In the alternative, defendants request summary judgment on the theory that Neves’ suit is time barred under the pertinent administrative filing requirements. Before passing on the merits of these claims, I shall briefly examine the relevant statutory and regulatory provisions.

A. Applicable Law

Section 2000e-16 of the Civil Rights Act of 1964 protects employees of the federal government or applicants for employment from discrimination on the basis of race, color, religion, sex, or national origin. Id. at § 2000e-16(a). The statutory scheme contemplates a process whereby employees may lodge initial complaints of discrimination with the employing agency. After a final agency decision is rendered, the complainant may appeal the decision to the Equal Employment Opportunity Commission. Any person aggrieved by a final agency action, or by a decision on appeal to the EEOC, may file a civil action in district court within thirty days of that decision. Id. § 2000e-16(c). Title VII vests the EEOC with the responsibility to promulgate regulations implementing and enforcing these provisions. Id. § 2000e-16(b).

Because the provisions fashion a detailed anti-discrimination enforcement system involving both the administrative and judicial branches of our government, potential plaintiffs have stringently been required to comply with Title VII’s procedural mechanisms. Thus a federal employee must exhaust his administrative remedies as well as meet requirements for a timely filing of administrative complaints before he may institute a discrimination action in federal court. Brown, supra, 425 U.S. at 833, 96 S.Ct. at 1968. Specifically, the employee, once he becomes aware of the allegedly offensive act, must file a complaint with employing agency. Id. See e.g., Porter v. Adams, 639 F.2d 273 (5th Cir.1981). The EEOC’s regulations provide that the agency may accept such a complaint for processing only if the complainant has brought the alleged violations to the attention of an EEO Counsellor within thirty calendar days of the time he first had reason to know of the alleged violation. 29 C.F.R. § 1613.241(a)(i) and (ii). The regulations further require the agency to extend the thirty day limit when:

the complainant shows that he was not notified of the time limits and was not otherwise aware of them, or that he was prevented by circumstances beyond his control from submitting the matter within the time limits; or ... for any other reason considered sufficient by the agency. 29 C.F.R. § 1613.214(a)(4).

B. Motion to Dismiss for Lack of Subject Matter Jurisdiction

The defendants vigorously argue that the plaintiff failed to discuss HUD’s alleged discriminatory Acts with an EEO Counselor within thirty days as required by the EEOC regulations. They urge that the timely filing requirements of Title VII are jurisdictional and thus if plaintiff has indeed neglected to satisfy those requirements, this Court is without authority to entertain this suit. If I adopt defendants’ legal position, equitable considerations such as waiver and estoppel will be ineffecfive to excuse the plaintiff’s non-compliance.

The Supreme Court of the United States has recently analyzed the nature of Title VII’s timely filing requirements. In Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Court held that in a Title VII discrimination suit, the statutory provision that the complainant must file a timely charge with the EEOC is not a jurisdictional prerequisite to filing a district court action. Instead, the requirement should be treated as a statute of limitations that is subject to waiver, estoppel, and equitable tolling. Id. at 394, 102 S.Ct. at 1133. Although the defendants correctly point out that the facts of Zipes are distinguishable from the case at bar insofar as Zipes was an action against a private, rather than a federal employer, I hold that such a distinction is inadequate to insulate this case from the Supreme Court’s ruling.

First, I believe it is notable that the Supreme Court did not limit its holding in Zipes to Title VII actions against private sector employers. See id. at 385, 102 S.Ct. at 1127. More significantly, however, the Court’s analysis, I believe, mandates the extension of the holding to § 717 actions. In Zipes, the plaintiff had sued in federal court under Title VII’s private anti-discrimination provisions, 42 U.S.C. § 2000e-5 et seq. The Court examined the structure and policy of Title VII to conclude that the one hundred eighty day filing limitation applicable to such suits was not jurisdictional. Zipes, 455 U.S. at 394, 102 S.Ct. at 1133. In reaching its decision, the Court particularly stressed the structure and language within the statutory scheme. It noted that:

The provision granting the district courts jurisdiction under Title VII ... does not limit jurisdiction to those cases in which there has been a timely filing with the EEOC. It contains no reference to the timely filing requirement. The provision specifying the time for filing charges with the EEOC appears in an entirely separate provision, and it does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.

Id. at 393-94, 102 S.Ct. at 1132-33 (footnotes omitted).

I believe this reasoning is applicable to the provisions of Title VII, as added by the 1972 amendments, which prohibit discrimination by federal employers. This statutory scheme, like its private counterpart analyzed in Zipes, imposes timely filing requirements on Title VII plaintiffs. Similarly, these requirements do not “refer in any way to the jurisdiction of the district courts.” In addition, 42 U.S.C. § 2000e-16(d) specifically incorporates by reference the jurisdictional provisions of the private sector law. It seems illogical indeed to argue that a single statutory provision confers on federal courts a lesser or greater degree of jurisdiction over Title VII suits depending on whether it is brought against a private or federal employer. See Clark v. Chasen, 619 F.2d 1330, 1334 (9th Cir.1980) (there are no more jurisdictional prerequisites for federal employees than for private sector employees). See also Saltz v. Lehman, 672 F.2d 207, 208 (D.C.Cir.1982); Milam v. United States Postal Service, 674 F.2d 860 (11th Cir.1982) (both applying Zipes to § 717 filing requirements).

In support of its argument that Zipes is inapplicable to the federal employment context, the defendants cite authority from other Circuits holding the filing requirements of § 717 to be jurisdictional prerequisites. See e.g., Sims v. Heckler, 725 F.2d 1143 (7th Cir.1984) (arguing that the waiver of sovereign immunity must be strictly construed). To the extent that any of those cases are inconsistent with my holding, I reject their reasoning. I should note, however, that with the exception of Sims, supra, the decisions cited by the defendants were rendered prior to Zipes, and thus without the benefit of its analysis. See e.g., Stockton v. Harris, 434 F.Supp. 276 (D.D.C.1977); DeMedina v. Reinhardt, 444 F.Supp. 573 (D.D.C.1978); Stanislaus v. Steorts, 530 F.Supp. 72 (D.Ill.1981).

Finally, even if I were to accept the defendants’ contention that the timely filing requirements of § 717 are in fact jurisdictional, such a finding would be of no avail to the defendants. The defendants do not argue that plaintiff has breached the statutory requirements for filing a timely administrative complaint; rather, they contend that the plaintiff failed to comply with the EEOC regulation mandating that a complainant discuss an alleged act of discrimination with an EEO counselor within thirty days of its occurrence. See Defendants’ Memorandum of Law in Support of its Motion to Dismiss, p. 10-11.

Although it is true that in some instances an administrative rule may be deemed to have the “force and effect of law,” see Chrysler Corp. v. Brown, 441 U.S. 281, 295, 99 S.Ct. 1705, 1714, 60 L.Ed.2d 208 (1979), this principle refers to binding force of substantive agency regulations promulgated pursuant to proper congressional delegation of authority. See id. Certainly, this proposition may not be so loosely construed as to suggest that an administrative body may hone the subject matter jurisdiction of federal courts. While Congress may delegate certain legislative functions to agencies, it is dubious that it may constitutionally authorize the administrative usurpation of one of its exclusive and explicitly enumerated functions — to shape the jurisdiction of the lower federal courts. And even if Congress could delegate such authority, it decidedly has not done so in this instance. The Congressional grant of authority to the EEOC directs it to enforce and implement the provisions of Title VII, not to refine the jurisdiction of the district courts. 42 U.S.C. § 2000e-16(b).

Accordingly, the defendants’ motion to dismiss for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1) is denied.

IV. Motion for Summary Judgment

Having denied defendants’ motion to dismiss, I must now pass on their motion for summary judgment based on plaintiff’s failure to meet the timeliness requirements of 29 C.F.R. § 1613.214. It seems clear from both the plaintiff’s complaint and his admissions that the plaintiff did not bring the particular incidents pleaded in this action to the attention of an EEO Counselor within thirty days of their occurrence. The issue I must now decide, therefore, is whether extraneous considerations, either legal or equitable, permit this Court to extend the thirty day filing requirement and entertain the plaintiff’s claim. The plaintiff offers two specific theories in opposition to the defendants’ summary judgment motion. First, he contends that he falls within the exception to the thirty day filing requirement as set forth in 29 C.F.R. § 1613.214(a)(4). Second, he asserts that the discriminatory acts complained of are part of a pattern and practice of “continuing discrimination” by HUD, which would toll the limitations period. Below, I shall address each of the arguments in turn.

1. Administrative Exception to the EEOC Filing Requirement

Section 1613.214(a)(4) of 29 C.F.R. creates an exception to the rule that an employing agency may not process a discrimination claim unless it has been brought to the attention of an EEO Counselor within thirty days of its occurrence. It allows an extension of time when the complainant shows the agency that “he was not notified of the time limits and was not otherwise aware of them, or that he was prevented by circumstances beyond his control from submitting the matter within the time limits....” Id.

The record of this case shows that Mr. Neves’ original allegations of discrimination were rejected by HUD for failure to discuss them with an EEO Counselor within the requisite period. Although the plaintiff has intimated that he was unaware of those limitations at the time he lodged his complaint, see Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment, p. 8, he offers no support for this assertion. To the contrary, the exhibits before the Court indicate the plaintiff had been aware of the requirements. Most notably, plaintiff did not request an extension of the filing period on those grounds. In addition, Mr. Neves did offer an excuse for his failure to discuss one allegation of discrimination with the EEO Counselor, but that excuse was wholly unrelated to his ostensible ignorance of the timeliness regulation.

This Court likewise cannot accept the plaintiff’s excuse for noncompliance as an equitable consideration which would toll the limitations period. Although, as I have already established, Title VII filing requirements are indeed subject to equitable tolling, the plaintiff has the burden of pleading and proving any equitable excuses for his failure to meet the thirty day requirement. Saltz, supra, 672 F.2d at 207. Mr. Neves has averred nothing, either by way of affidavit or complaint, to create a genuine issue of material fact on this point. See Stanislaus, supra, 530 F.Supp. at 74.

2. Continuing Title VII Violation

Finally, the plaintiff contends that the incidents alleged in his complaint were part of a continuing course of discriminatory conduct and are consequently not time barred. Citing authority from this circuit, he argues that when unlawful acts are committed pursuant to a continuing course of discriminatory conduct, and at least one of the discriminatory acts is brought to the attention of an EEO counselor within thirty days of occurrence, then each and every act is actionable whether or not it was timely raised. The plaintiff contends that because HUD accepted two of his original complaints as timely, the charges at issue in this lawsuit may be entertained as an integral part of those complaints.

The plaintiff misapprehends the nature of the “continuing violation” doctrine and wrongfully invokes it here. As the United States Court of Appeals for the First Circuit has noted, “if a Title VII ... violation is of a continuing nature, the charge of discrimination filed with the appropriate agency may be timely as to all discriminatory acts encompassed by the violation so long as the charge is filed during the life thereof or within the statutory period ... which commences upon the violation’s termination.” Goldman v. Sears, 607 F.2d 1014, 1018 (1st Cir.1979). Under this theory, even discrete injuries which were not timely complained of may be redressed providing that they are indeed but a part of an ongoing policy of discrimination. Cf. Acha v. Beame, 570 F.2d 57, 65 (2d Cir.1978). The United States Supreme Court, in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), explained the pivotal inquiry in assessing whether a continuing violation has been alleged. “[T]he emphasis should not be on mere continuity; the critical question is whether a present violation exists.” Id. at 558, 97 S.Ct. at 1889. Based on these criteria, in order to save the allegations in Counts I through VI of his complaint, the plaintiff must demonstrate two points. First, he must show a present violation of Title VII — that is, a violation for which he has filed a timely complaint. Second, he must demonstrate that the present violation is part of a continuing discriminatory course of conduct, and that those allegedly discriminatory acts which were not timely raised with an EEO Counselor were but a part of the same course of conduct. I must hold that the plaintiff has failed on both counts.

The most pronounced flaw in the plaintiff’s argument is the fact that he simply does not allege a present, timely filed act of discrimination in his district court complaint. It is true that HUD accepted for processing two allegations of unfair employment practices which were lodged at the same .time as the allegations that are the subject of this suit. For reasons unknown to this Court, however, the plaintiff has excluded these incidents from his pleadings. Since no present violation has been alleged, therefore, it is impossible to find that the acts averred in Counts I through VI are part of a present discriminatory policy.

Finally, even if the plaintiff had raised a present violation in this action, his complaint is totally devoid of allegations from which one could infer continuing discriminatory policy. See Goldman v. Sears, 607 F.2d 1014 (1st Cir.1979) (holding that even bare allegations of a continuing violation might be insufficient). He advances no facts in support of a conclusion that the isolated incidents complained of in this action were part of an ongoing practice by HUD to repress his job advancement on account of his national origin. Absent such a showing, federal courts have held that an agency’s successive failure to promote an employee state a cause for discrete acts of discrimination rather than a continuing violation. See e.g., Aikens v. United States Postal Service, 642 F.2d 514, 516 n. 1 (D.C.Cir.1980).

For the forgoing reasons, the defendants’ motion for summary judgment is granted.

      . The two additional incidents alleged-by Neves in his letter to the EEO Counselor were: 1) On April 27, 1981, Neves was forced to promote Mae Wright or receive an unsatisfactory performance rating; and 2) on May 4, 1981, plaintiffs position in Loan Management in the Providence Service Office was downgraded to a position of a Housing Management Assistant.

      . Also as an initial matter, the federal defendants have sought dismissal of the claims against Casimir Kolaski, the Superintendent of the Providence Office of HUD. They argue that the proper party defendant in a Title VII action is exclusively the agency head. Because of my disposition of this case on defendants’ summary judgment motion, I find it unnecessary to rule on this point of law.

      . 29 C.F.R. § 1613.214(a)(1) and (i) reads in full:
      (a) Time limits. (1) An agency shall require that a complaint be submitted in writing by the complainant or his representative and be signed by the complainant. The complaint may be delivered in person or submitted by mail. The agency may accept the complaint for processing in accordance with the subpart only if:
      (i) The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter, or, if a personnel action, within 30 calendar days of its effective date; and
      (ii) The complainant or his representative submitted his written complaint to an appropriate official within 15 calendar days of the date of his final interview with the Equal Employment Opportunity Counselor.

      . 42 U.S.C. § 2000e-5(e) specifically provides that any charge of discrimination against a private employer must be filed within one hundred eighty days after the alleged unlawful employment practice.

      . The provision requiring a timely filing reads as follows:
      (e) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings 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, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency. 42 U.S.C. § 2000e-5(e).
      The provision conferring jurisdiction on the United States Courts reads as follows:
      (3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this sub-chapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought.

      . The timely filing requirements delineated by § 717, however, provide only for the filing time of a district court action. 42 U.S.C. § 2000e-16(c) reads:
      (c) Within thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this action, or by the Equal Employment Opportunity Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Equal Employment Opportunity Commission on appeal from a decision or order of such department, agency, ■ or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate shall be the defendant.

      . As to the allegation which forms Count IV of the district court complaint, the plaintiff asked that his tardiness in discussing the matter with an EEO counselor be excused by the fact that he was waiting for his supervisor to correct the action. HUD rejected this excuse, deeming it not to be a factor beyond Neves’ control which prevented him from visiting a counselor.


author: ROSENBERG, District Judge.

text:
    BEST RESUME SERVICE, INC., Plaintiff, v. Ronald CARE, an individual and t/a Best Resume Service, Defendant.
    No. Civ. A. 84-1337.
    United States District Court, W.D. Pennsylvania.
    Jan. 30, 1985.

      Michael D. Fox, Pittsburg, Pa., for plaintiff.
    Richard Myers, Greensburg, Pa., for defendant.
   MEMORANDUM OPINION

ROSENBERG, District Judge.

This matter is before me on a motion for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. The motion was initiated by Best Resume Service, Inc. to attempt to stop the defendant from engaging in any further competitive action, or engaging in any more resume writing after a franchise agreement between the parties had been cancelled.

This court’s jurisdiction arises from the fact that this is an action brought under the trademark laws of the United States, 15 U.S.C. §§ 1051-1127, original jurisdiction being conferred in accordance with 15 U.S.C. § 1121 and 28 U.S.C. § 1338. Venue in this court is proper with respect to the claims asserted in the complaint, pursuant to 28 U.S.C. § 1391(b) because such claims arose in the Western District of Pennsylvania.

At the hearing the plaintiff demonstrated that if the defendant is not enjoined from continuing his competitive resume writing, the plaintiff, inter alia, will suffer irreparable harm to its business and goodwill as well as to the business and goodwill of its new Westmoreland County franchise, which has already opened, none of which will be compensable by monetary damages.

From the evidence presented, I have made findings of fact. Best Resume is a Pennsylvania corporation which has been doing business under the name of Best Resume Service since 1962. Ronald Care is a resident of Pennsylvania currently operating a business-styled “Best Resume Service” located in Greensburg, Pennsylvania. On April 12, 1979, Best Resume and Care entered into a franchise agreement pursuant to which Care was granted the exclusive franchise in Westmoreland County, Pennsylvania, excluding only that part of Westmoreland County within a ten mile radius of the City of New Kensington. Thereafter and until approximately October, 1981, Care regularly and routinely furnished royalties and operation reports to Best Resume pursuant to Article IV of the Franchise Agreement.

Article IV states that:

“Franchisee shall pay to Franchisor a sum representing seven percent (7%) of the gross cash receipts from the operation of Franchisee’s business, said sums to be paid on a monthly basis to and received by Franchisor on or before the tenth day of each month for the preceding month, commencing the month col-lowing the month in which the Franchisee begins business. In the event Franchisee fails to pay Franchisor the above-mentioned royalty, Franchisor shall have the right to terminate this Franchise Agreement.”

However, during the period from October, 1981 until the termination of the parties relationship in November, 1982, Care paid no royalties nor did he furnish any operation reports. During 1982, Best Resume inquired of Care as to why he had ceased to remit royalties and operating reports and was advised by Care that he had elected to terminate the Franchise Agreement on November' 22, 1982. Best had delivered to Care a formal acceptance of the termination and notice. The termination letter provided that he should cease operation of the franchised office by December 24, 1982, as provided for in the termination provisions of the Franchise Agreement.

At no time since October, 1981 has Care remitted any royalties; furnished operating reports or complied with any other duties of the Best Resume Franchisee, as provided in the Franchise Agreement. Subsequent to the termination of Care’s franchise, Best Resume checked the yellow pages’ listings and made inquiries at Care’s place of business in order to satisfy itself that Care was not continuing to use or advertise by the trade name “Best Resume Service”.

Following this, in March of 1984, Best Resume entered into a new Franchise Agreement for the Westmoreland County territory with a franchise which opened in Greensburg, Pennsylvania. The new franchise has alerted Best Resume to the fact that Care had resumed use of the trade name and service mark “Best Resume Service” by advertisements which were placed in the Tribune Review Newspaper in Greensburg on the dates of March 8, 26, 27, 28, 29, 30, 31 and April 1, 2, 3 of 1984 as indicated by exhibits admitted at the hearing.

Additionally, the authorized Best Resume franchise had received correspondence from a local bank which concerns one of Care’s customers and which further indicates that Care is wrongfully using the name Best Resume Service. A copy of the Equibank letter and check were admitted into evidence as well.

The defendant, Ronald Care, avers to the contrary that the defendant did not wrongfully appropriate the name, but paid the plaintiff full and complete consideration for the name prior to the time the plaintiff had registered the name as a trademark. Care claims that he acquired the right to use the name by payment to the Franchisor of $12,-500 to acquire the franchise. Care thus seems to be proposing the novel theory that the implementation of a franchise agreement involves the irrevocable sale of the name even if the franchisee breaches the contract and terminates the agreement.

The defendant further avers that the name registered by Best Resume Service, Inc. on February 24, 1981 is not the same because the name as registered has an accent mark over the word “resume” and in fact was registered after 1979 when the name was used by Ronald Care in the operation of his business. The evidence demonstrates franchise agreement was terminated by Ronald Care because of his breach of contract in failing to provide services called for under the franchise agreement.

The Lanham Act, 15 U.S.C. § 1053 provides that service marks are registerable in the same manner as trademarks, and when registered, are entitled to the same protections. With respect to infringement, 15 U.S.C. § 1114 states in pertinent part:

“(1) Any person who shall, without the consent of the registrant—
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
(b) reproduce, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, ...”

The remedies provided in § 1117 of the Lanham Act are recovery of profits, damages, costs and, in exceptional cases, reasonable attorneys fees.

Care’s former right to the use of Best’s name stemmed solely from the 1979 Franchise Agreement and was extinguished upon its termination. Care did not “buy” the name Best and nothing in the agreement supports such contention. Article VII of the Franchise Agreement provides that:

“Upon termination of this agreement for any reason whatsoever, Franchisee shall not thereafter for a period of 3 years engage either directly or indirectly, as principal or employee, alone or in association with others, in resume writing, preparation or similar business to that licensed and established herein, within a fifty (50) mile radius of any office of Franchisee, or any office of any other franchisee of Best Resume Service, Inc.”

I find from the evidence presented that the use by the defendant of the Best Resume Service mark is likely to cause confusion. The Third Circuit indicated that the use of an identical mark upon identical services in the same market place in competition for the same customers would establish a likelihood of confusion entitling a claimant to injunctive relief. Holiday Inns, Inc. v. B & B Corp., 409 F.2d 614, 618 (C.A. 3, 1969). In this case, the parties have used an identical mark (Best Resume Service) in an identical manner to promote the sale of the same type of services. Moreover, Care continued to use this mark after being advised that Best considered such use to be an infringement. Victoria Station, Inc. v. Clarefield, Inc., 458 F.Supp. 199 (W.D.Pa., 1978).

Finally, it is a long-settled principle of law that a licensee of a trademark or trade name may not set up any adverse claim in and against its licensor. Pacific Supply Co-op. v. Farmers Union Central Exch., Inc., 318 F.2d 894 (C.A. 9, 1963). Here the parties relationship is governed by the terms of a franchisee agreement which provides for complete ceasation of a trade name use upon termination of the contract. The evidence demonstrated that both sides agreed termination has occurred. Care’s continued use of the service mark cannot be other than unlawful.

A preliminary injunction is an extraordinary remedy based on a limited hearing and should be granted only in exceptional circumstances. Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 357 (C.A. 3, 1980). The moving party must show: (1) a reasonable probability of eventual success in the litigation; (2) that the moving party will suffer irreparable harm if the relief is not granted; and in addition when relevant, the court should consider (3) the possibility of harm to other interested persons from the grant or denial of the injunction; and (4) the public interest.

As outlined in the foregoing Memorandum Opinion, the plaintiff has demonstrated all of the above factors and therefore the plaintiff’s motion for a preliminary injunction will be granted.