CHEATHAM v. HOLDER
1:12-cv-00094
D.D.C.Apr 2, 2013Background
- Cheatham, a USAO paralegal specialist, pursued four supervisory paralegal positions in 2008; all four were filled by women.
- He learned he was not selected for two positions (Misdemeanor and Felony) on May 21, 2008; two other positions (Grand Jury and Domestic Violence) were not challenged then.
- EEO counseling followed the two non-selections; a formal complaint was filed and accepted for investigation focusing on the two initial non-selections.
- Cheatham sought to amend the charges to include the Grand Jury and Domestic Violence non-selections; the AJ denied the motion to amend.
- The court later held the two additional non-selections were not exhausted administratively and granted summary judgment for the USAO on discrimination claims, while addressing retaliation claims separately.
- Two retaliation theories were pursued: (i) a reduction of the 2010 performance rating from Outstanding to Successful, and (ii) a $1,500 cash award memo later rescinded due to a clerical error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cheatham exhausted administrative remedies for Grand Jury and Domestic Violence non-selections | Cheatham argues all four non-selections fall within the same charge. | Only two non-selections were accepted for investigation; exhaustion for the others is lacking. | Summary judgment for USAO on discrimination claims for two non-exhausted positions. |
| Whether the discrimination claims for the two unexhausted non-selections are time-barred | Formal filing within 180 days of EEOC action preserves claims. | Administrative limitation and motions to amend show failure to exhaust; timeliness defeated. | Discrimination claims for Grand Jury and Domestic Violence non-selections dismissed for lack of exhaustion. |
| Whether the retaliation claim based on the cash award denial is actionable | The cash award denial was retaliatory for EEO activity. | Clerical error caused the improper award; not retaliatory. | USAO summary judgment granted on cash-award retaliation claim. |
| Whether the retaliation claim based on the 2010 performance evaluation can survive summary judgment | Lowered evaluation from Outstanding to Successful reflects retaliation for EEO activity. | Reason for rating could be legitimate and non-retaliatory; evidence supports non-pretext. | Summary judgment denied in part; material facts remain; jury to decide pretext as to the 2010 rating. |
Key Cases Cited
- Payne v. Salazar, 619 F.3d 56 (D.C. Cir. 2010) (exhaustion principles and timing in administrative appeals)
- Bowden v. United States, 106 F.3d 437 (D.C. Cir. 1997) (administrative exhaustion and equitable tolling concepts)
- Brown v. GSA, 425 U.S. 820 (U.S. 1976) (exhaustion policy and notice objectives in administrative processes)
- Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (U.S. 2006) (materially adverse standard for retaliation claims)
- McGrath v. Clinton, 666 F.3d 1377 (D.C. Cir. 2012) (retaliation standard and pretext framework)
- Jones v. Bernanke, 557 F.3d 670 (D.C. Cir. 2009) (pretext as the ultimate issue in retaliation cases)
- Baloch v. Kempthorne, 550 F.3d 1191 (D.C. Cir. 2008) (adverse action analysis for performance evaluations)
- Carter v. Rubin, 14 F. Supp. 2d 22 (D.D.C. 1998) (timeliness after final agency action in Title VII actions)