Denial of Promotion Claim

The U.S. District Court for the District of Columbia recently dismissed a discrimination claim against the Department of the Treasury based on failure to promote due to untimely EEO contact. Margaret Elaine Rand v. Secretary of the Treasury, No. 11-0462 (ESH) (D.D.C. 10/6/11).

Rand had claimed that from 1999 to 2002 the agency discriminated on the basis of sex when it denied her an accretion of duties promotion to GS-14, while younger, male colleagues doing substantially similar work were paid at the grade 14 level. The agency moved to dismiss on the grounds that. Rand had failed to exhaust her administrative remedies at the agency level by failing to make EEO contact within 45 days of learning of the discriminatory action and that the complaint had therefore been untimely.

The agency also argued that "failure to promote" is not an adverse personnel action upon which an EEO claim must be based; Rand apparently conceded that argument by failing to address it in her opposition. Rand also conceded that she had waited to contact an EEO counselor for more than a year and a half after learning that she had not been promoted due to an accretion of duties. Rand argued that her claim was equivalent to a pay discrimination claim, however, and that the Ledbetter Act revived her claim because it deems "each payment" resulting from a discriminatory compensation decision to be an unlawful employment practice under Title VII or the Age Discrimination in Employment Act; thus she should be allowed recovery of back pay for up to two years preceding the filing of the charge.

The district court held that it was bound to follow the interpretation set out by the U.S. Court of Appeals for the D.C. Circuit which has ruled that the Ledbetter Act does not revive claims based on denial of a promotion, because such a denial is not a "discriminatory compensation decision or other practice" under the Act. Accordingly, the district court found that Rand should have contacted her EEO counselor within 45 days after the original discriminatory "act" (here, the 2000 failure-to-promote). Because she missed that deadline by more than a year, the court held that she failed to exhaust the administrative process and granted the agency summary judgment.

On a separate note, this case provides another stark example of the substantial delays federal employees face in pursuing their civil rights claims. The district court issued this decision granting the agency summary judgment on October 6, 2011, more than nine years after Rand first contacted an EEO counselor about her claim in August, 2002.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com/.