United States District Court, Northern District of Illinois, E. D
December 10, 1981
JOHN STANISLAUS, PLAINTIFF,
NANCY HARVEY STEORTS, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
John Stanislaus ("Stanislaus") has filed a Title VII complaint
under 42 U.S.C. § 2000e 16 against the federal government
(Nancy Steorts is the named defendant in her capacity as
Chairman of the Consumer Product Safety Commission, "CPSC")
charging discrimination on grounds of national origin
(Stanislaus is of Indian descent). In response the government
has moved alternatively for dismissal or summary judgment. For
the reasons stated in this memorandum opinion and order the
government's summary judgment motion is granted.*fn1
Stanislaus, a chemist, applied for government employment in
July 1978 for "any suitable job," leaving open his requested
pay and grade level. Announcement 424, under which engineers,
physical scientists and mathematicians register with the
government for hiring by federal agencies, has established
lists of such scientists eligible for GS 5 through GS-13 jobs
in the CPSC Chicago Regional Area, comprising six states
Because of the death of one of its chemists July 24, 1978,
CPSC's Chicago Regional Office (the "Office") began recruiting
actively for an analytical chemist. It requested a list of
eligible candidates at the GS 5 level from the Civil Service
Commission (the "Commission"). Round one of the search produced
no result, because four of the five persons on the Commission's
initial list declined the offer and the other failed to
In August 1978 a second certification was requested. Six names
came back, including Stanislaus' (apparently his name had not
reached the central listing at the time of the Office's
unsuccessful original request). Only Stanislaus answererd the
inquiry. After his interview with the laboratory director
(coincidentally also a native-born Indian) Stanislaus was hired
and began work October 23, 1978.
Some six months later, at Stanislaus' request, the Office of
Personnel Management ("OPM") certified him as eligible for a
GS-11 chemist position (that certification would enable
Stanislaus to qualify for federal agency job openings at that
level, if any were to develop). One such job possibility arose
with the Department of Energy ("DOE") but no one was hired for
that spot. Then on August 1, 1979 a DOE job opening appeared at
the GS 7 level and DOE inquired as a to Stanislaus'
availability. Stanislaus declined, writing DOE (emphasis
I am already offered GS-7 where I am.
I am well qualified for GS 9, 11 and 12.
I will accept your offer at least at GS-9 level. I did not
know when I first got job, that I could have demanded the level
I deserved; I always thought one should always begin at entry
level no matter what ones qualifications were. Please consider
for GS 9 level at least.
In October 1979 Stanislaus sought OPM review of his job
classification, represented by the same experienced counsel who
has filed this action on Stanislaus' behalf. In February 1980
OPM determined that Stanislaus' present position was properly
classified GS 7 (Stanislaus having been promoted to that level
in the ordinary course, without reference to any claims or
disputes on his part). Stanislaus appealed the OPM decision
administratively. One of the questions asked on that appeal was
If you believe you were discriminated against by the agency
because of either your race, color, religion, sex, national
origin, material status, political affiliation, handicapping
condition, or age, indicate so and explain why you believe it
to be true
Stanislaus' counsel stated in response:
Not applicable to this case.
Some few days before August 12, 1980 Stanislaus communicated
with the Office's Equal Employment Opportunity Counselor John
Vece to complain about discrimination in his 1978 hiring. On
September 15, 1980 Stanislaus filed a formal complaint of
discrimination based on national origin. That complaint claimed
Stanislaus was hired at the GS-5 level though more highly
qualified. It went on:
I did not have sophisticated knowledge of the hiring practices
of the Federal government and after being hired at the GS-5
level, I found that I was unfairly trapped in this position and
could not progress for several years to the proper level for
which I should have been originally hired. This hiring policy
shows discrimination against me because of my national origin
and the attitudes of the hiring and supervisory officials that
those citizens born in this country be selected for the higher
Stanislaus asked for a GS-11 position and retroactive salary
increments to his 1978 hiring date.
CPSC's EEO Director rejected the complaint as untimely in light
of the 30-day jurisdictional requirement for filing
administrative complaints.*fn2 Stanislaus appealed to the
EEO Office of Review and Appeals and, no action having been
taken within 180 days, then brought this action as permitted by
42 U.S.C. § 2000e-16(c).
Lack of Timeliness
Title VII actions involve several jurisdictional time
limitations, the first of which as to a government employee
requires a discrimination charge to be made with the agency
within 30 days of "the matter causing him to believe he had
been discriminated against." 29 C.F.R. § 1613.214(a)(1)(i). If
that precondition (Brown v. GSA, 425 U.S. 820, 832, 96 S.Ct.
1961, 1967, 48 L.Ed.2d 402 (1976)) has not been satisfied, the
employee's federal court complaint must be dismissed. See
e.g., De Medina v. Reinhardt, 444 F. Supp. 573, 576 (D.D.C.
1978); McKenzie v. Calloway, 456 F. Supp. 590, 605-06
(E.D.Mich. 1978), aff'd 625 F.2d 754 (6th Cir. 1980).
Stanislaus waited almost two years after the claimed
discriminatory hiring. That has to be fatal to his case. His
efforts to convert the asserted discriminatory hiring into
continuing discrimination must be unavailing. Cf. Heymann v.
Tetra Plastics Corp., 640 F.2d 115, 120 (8th Cir. 1981)
("initial job assignment, like a hiring decision, in no respect
constitutes a continuing violation"). Nor do any facts
advanced by Stanislaus*fn3 support the proposition that the
failure to reclassify his position was based on his national
origin (his own April 20, 1980 filing of the OPM appeal said no
such national origin discrimination was involved). There have
been no subsequent hirings or promotions by the Office of
chemists above Stanislaus' grade, so that no basis for
asserting continuing violations has been demonstrated. Cf.
Moore v. Sunbean Corp., 459 F.2d 811, 828 (7th Cir. 1972).
Stanislaus argues that he is entitled to avoid the impact of
the 30-day rule because of the provision for its extension
under 29 C.F.R. § 1613.214(a)(4):
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. . . .
Stanislaus' affidavit in response to the government's summary
judgment motion does not even address this issue, so that
summary judgment could be granted for Stanislaus' failure to
make the requisite showing. But even apart from that Stanislaus
will not be heard to assert that excuse where he was
represented by counsel experienced in Title VII matters since
October 1979, almost a year before Stanislaus complained
to the EEO Counselor.*fn4
See Arrington v. Bailar,
481 F. Supp. 50, 53 (S.D.Tex. 1979); McKenzie, 456 F. Supp. at 605.
Absence of Discrimination
Even were Stanislaus able to overcome the jurisdictional
timeliness problem, he has not countered the government's
assertion that his claim of discrimination is inadequate as a
matter of law. Its position in that respect is entirely sound
and serves as an independent basis for summary judgment in its
favor. This Court will not repeat, but will simply adopt, the
persuasive analysis at G.Mem. 9-13. But it should be noted that
the uncontroverted facts show that the job rating for the
position was established as GS-5 before Stanislaus ever
appeared on the scene at all. Whoever would have been hired
for the job would have been hired at the GS-5 level. Only
Stanislaus wanted the job, and he took it. As G.Mem. 13 states:
It is clear that the system of hiring a federal employee is
geared to eliminating discrimination with respect to the
particular grade level. The agency has no knowledge of who is
available or qualified when it determines a grade level
suitable to its needs. In the present case, plaintiff was hired
by CPSC at a GS-5 level based on his being eligible and
certified by the Civil Service Commission. Plaintiff's eyes
were open in the Fall of 1978, to the fact of his eligibility
for higher grades and the rather low salary attached to a GS-5.
Further, he admitted that he felt an entry level position was
appropriate. Plaintiff should not now be allowed to transform
his own actions into a discrimination charge against the
federal agency which hired him.
Stanislaus' contention of national origin (or any other)
discrimination is frankly absurd.
There is no genuine dispute as to any material fact and the
government is entitled to a judgment as a matter of law. This
action is dismissed with prejudice.