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SIMS v. SCHWEIKER

September 22, 1982

CHARLES SIMS, PLAINTIFF,
v.
RICHARD S. SCHWEIKER, DEFENDANT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Charles Sims ("Sims") alleges he was subjected to employment discrimination by the Department of Health and Human Services ("HHS") in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-16 (1976). HHS has moved for dismissal for Sims's failure to satisfy jurisdictional preconditions to suit. For the reasons stated in this memorandum opinion and order, HHS' motion is granted.*fn1

Facts

In March 1975 Sims began work in Chicago with a GS-5 appointment in HHS'*fn2 Office of Financial Management ("OFM"). Though such an appointee could ordinarily expect promotion to GS-6 upon satisfactory completion of one year's service, Sims was not promoted when he became eligible in March 1976. On December 15, 1976 Sims complained to an HHS Equal Employment Opportunity ("EEO") Counselor, claiming discriminatory treatment because of his race and sex. Unable to resolve the complaint informally, the Counselor terminated counseling February 9, 1977.

Sims promptly filed a formal discrimination complaint, and an HHS investigation ensued from March to May 1977, followed by an unsuccessful attempt at informal adjustment in July 1977. In a lengthy November 1977 report HHS informed Sims of its Proposed Disposition of his complaint. It found Sims had not been discriminated against because of his race or sex, although HHS did identify some deficiencies in OFM's managerial personnel practices.

In early 1978, before HHS had proceeded with the formal hearing Sims had then requested, Sims's complaint was remanded to HHS by the Civil Service Commission ("CSC") for further specification of the issues in its Proposed Disposition. HHS then issued a detailed Revised Proposed Disposition in June 1979, again finding no discrimination against Sims and recommending minor managerial adjustments in Sims's employment record. Sims again requested a formal hearing, which was conducted by a Complaints Examiner from the EEO Commission (CSC's functional successor) in June and July 1980. On December 30, 1981 the Examiner filed an extensive report, finding no discrimination. HHS adopted the Examiner's report in full and informed Sims of its decision in May 1982.

In the meantime Sims had filed his Complaint in this Court August 3, 1979, after he had received the Revised Proposed Disposition and had renewed his request for a formal hearing before a Complaints Examiner. By joint motion of the parties, proceedings in this action were stayed July 8, 1980, pending completion of the Examiner's hearing and investigation, then in progress.

Jurisdictional Time Limitations

HHS poses three jurisdictional objections to Sims's 12 claims of discriminatory actions identified in the Complaint and in Sims's interrogatory answers.*fn3 HHS contends:

    1. Sims failed to present two of those actions
  to an EEO Counselor within 30 days of their
  occurrence, as required by
29 C.F.R. § 1613.214(a)(1)(i) (1981).*fn4
    2. Sims failed to present another six of those
  actions to an EEO Counselor at all, as required
  by Section 1613.213(a).*fn5
    3. Sims failed to plead or show the other four
  of those actions were in fact presented to an EEO
  Counselor, again as required by Section
  1613.213(a).

HHS is correct in arguing Sims's need to demonstrate compliance with those administrative requirements. They are preconditions to suit, and this Court must dismiss the claims if the requirements have not been satisfied. Stanislaus v. Steorts, 530 F. Supp. 72, 74 (N.D.Ill. 1981) and cases cited; see also Gaballah v. Johnson, 629 F.2d 1191, 1198 (7th Cir. 1980); Newbold v. United States Postal Service, 614 F.2d 46, 47 (5th Cir.), cert. denied, 449 U.S. 878, 101 S.Ct. 225, 66 L.Ed.2d 101 (1980).*fn6


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