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Wolfolk v. Rivera

decided*fn*: March 14, 1984.

ROBERT WOLFOLK, PLAINTIFF-APPELLANT,
v.
VICTOR M. RIVERA, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 C 3217 -- Nicholas J. Bua, Judge.

Cudahy, Posner, and Flaum, Circuit Judges.

Author: Cudahy

CUDAHY, Circuit Judge.

Plaintiff-appellant, Robert Wolfolk, brought this action seeking to redress alleged employment discrimination in connection with his employment by, and termination from, the Minority Business Development Agency (("MBDA").*fn1 Plaintiff's third amended complaint contained four claims: a Title VII claim of discrimination in hiring (plaintiff is black); a Title VII discrimination claim alleging wrongful termination; a claim based upon 42 U.S.C. § 1981; and a claim based upon 42 U.S.C. § 1985. The district court dismissed all but the second claim before trial. The dismissal of the first claim (the only dismissal challenged by plaintiff on appeal) was on the ground that it was time-barred; the district court concluded that plaintiff's claim of discrimination in hiring was not presented to the MBDA's Equal Employment Opportunity counselor within thirty days of the date of the alleged discriminatory act, as required by 29 C.F.R. § 1613.214(a)(1)(i).*fn2

After a bench trial, the district court issued its findings of fact and conclusions of law and held that defendant had produced compelling evidence of a legitimate, nondiscriminatory reason for plaintiff's termination and that plaintiff had produced no evidence that defendant's articulated reasons for dismissal were merely a pretext for discrimination. The court accordingly entered judgment in favor of defendant. This appeal followed.

I.

Plaintiff raises three sets of issues on appeal. First, he contends that the district court erred in dismissing his claim of discrimination in hiring. Second, he asserts that the district court erred in making two evidentiary rulings at trial. Finally, he complains about alleged errors made by his court-appointed counsel.

In reviewing the grant of a motion to dismiss, the well-pleaded factual allegations of the complaint are taken as true, Reichenberger v. Pritchard, 660 F.2d 280, 282 (7th Cir. 1981), and this court must consider the facts in the light most favorable to the nonmoving party, i.e. the plaintiff in this case, Henry C. Beck Co. v. Fort Wayne Structural Steel, 701 F.2d 1221, 1223 (7th Cir. 1983). We must resolve every reasonable doubt in favor of the nonmoving party. Id., at 1223-24. The grant of a motion to dismiss will be affirmed only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

Plaintiff worked for the MBDA as a Minority Business Program Specialist from September 10, 1979 to August 22, 1980. The announcement of the job opening at issue here stated that the position was available at grades of GS-9, GS-11 or GS-12, depending the applicant's experience. When Wolfolk was offered the job, however, he was advised that the position was available only at a grade of GS-9. Plaintiff accepted the job at that level although, at the time he was hired, Wolfolk met the requirements for a grade of GS-12. Plaintiff did not inquire, when he was offered the job, why the position was available only at a GS-9 level.

On August 6, 1980, Wolfolk was informed that his employment with the MBDA was being terminated and that he would soon receive a written letter of termiantion. The next day, plaintiff contacted an Equal Employment Opportunity ("EEO") counselor. On August 14, 1980, plaintiff received his written notice of termination from the MBDA. That same day, Wolfolk learned for the first time that other employees in the same office performing the same job he did, but whose qualifications were inferior to his, were receiving a GS-11 salary. These other employees were white. Wolfolk also learned for the first time on August 14, 1980, that the Chicago office of the MBDA had falsely reported to its Washington office that plaintiff's grade was GS-11 rather than GS-9.

Wolfolk filed a discrimination complaint on September 3, 1980, with the Office of Civil Rights ("OCR") in the United States Department of Commerce. Plaintiff received both the final decision from OCR denying his claim and a Notification of Right to Sue from the EEOC on or about May 9, 1981. Plaintiff timely filed his initial complaint in district court soon thereafter.

II.

A.

Federal law forbids discrimination in all personnel actions affecting federal employees or applicants for federal employment. 42 U.S.C. § 2000e-16(a) (Supp. IV 1980). The EEOC has the authority to enforce the statute and to issue rules and regulations necessary and appropriate to carry out its responsibilities. 42 U.S.C. § 2000e-16(b) (1976). The regulations require complaints to be brought to the attention of the EEO counselor in an agency within thirty days of "the matter causing [complainant] to believe he had been discriminated against" or, if a personnel action, within thirty days of its effective date.*fn3 Wolfolk's claim of discrimination in hiring is a "personnel action." By the terms of the ...


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