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Federal Employee Sues Over Not Being Promoted

Murthy v. Vilsack, Case No. 09-5026 (C.A. DC, Jun. 25, 2010)

Dr. Krishna Murthy sued the Secretary of Agriculture for breach of the terms of a settlement agreement and for non-selection to a GS-15 position in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court transferred the contract claims to the Court of Federal Claims pursuant to 28 U.S.C. § 1631 and granted summary judgment on the Title VII non-selection claim for failure to exhaust administrative remedies. Murthy appealed. By order of July 10, 2009 this court dismissed Murthy’s appeal of the transfer of the contract claims for lack of jurisdiction. Murthy v. Vilsack, Order, No. 09-5026 (D.C. Cir. July 10, 2009) (citing 28 U.S.C. § 1292(d)(4)(A)). The question now is whether, despite the transfer of some claims, this court has jurisdiction to review the grant of summary judgment on the remaining Title VII non-selection claim. We conclude that we do, and we affirm.

I.

According to his complaint, Dr. Krishna Murthy worked at the U.S. Department of Agriculture for twenty-seven years, most recently as a GS-14, step 10 veterinarian in Food Safety and Inspection Services. Throughout his tenure, despite his “exemplary” performance, he was “repeatedly” denied promotions to GS-15 and has consequently filed equal employment opportunity (“EEO”) complaints against the Department. Cmplt. ¶ 5. He also was “instrumental” in initiating a class charge filed with the Equal Employment Opportunity Commission (“EEOC”) by Asian/Pacific Islander employees alleging discrimination by the Department in denying promotions. Cmplt. ¶ 6. A settlement agreement of the class charge was approved by the EEOC in December 2004. Arun C. Basu, et al. v. Veneman, Dep’t of Agriculture, EEOC No. 100-A1-7863X. However, Murthy did not learn the settlement had been approved until after the thirty-day period to object had passed. Three of the six class agents received “significant individual relief, including retroactive promotions and payments of $100,000 to $300,000,” while he, although also a class agent, “was designated to receive only $40,000 and a two step increase at his current grade 14 step 8 position.” Cmplt. ¶ 10. Murthy filed a notice of breach of the settlement agreement with the Department and later complained to the EEOC contesting the fairness of the settlement agreement. The EEOC denied his petition and request for reconsideration.

Murthy then filed two charges with the EEOC: on June 28, 2006 seeking promotion to GS-15, and on August 17, 2006 alleging a violation of the settlement agreement and discrimination and reprisal when he was not selected for a GS-15 Associate Deputy Administrator position. On December 26, 2006 — 131 days after filing his August 17, 2006 EEOC charge — Murthy filed a complaint in the federal district court. In count one, he alleged discrimination in violation of Title VII when the Department denied him promotions to GS-15 in June and August 2006. He also alleged discrimination and retaliation in violation of Title VII when he was provided “significantly less relief” under the settlement agreement than other class agents and was not provided timely notice of his right to object. Cmplt. ¶ 17. He sought placement in a GS-15 or comparable position and compensatory damages, including front and back pay and benefits. In count two, he alleged breach of contract because he was provided “significantly less” under the settlement agreement than other class agents and was not provided timely notice of his right to object. Cmplt. ¶ 18. He sought rescission of the settlement agreement as it applied to him, damages equal to his accumulated lost wages and benefits as well as future lost wages, and damages for financial and emotional harm.

The district court transferred Murthy’s breach of the settlement agreement claims in count 2 and also the non-promotion claims in count 1 determined to arise under the settlement agreement to the Court of Federal Claims, which has exclusive jurisdiction over contract claims against the United States for more than $10,000, see 28 U.S.C. § 1491(a)(1); Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007). The district court reasoned that Murthy’s claims of discrimination and retaliation relative to the other class agents were primarily contract claims for breach of the settlement agreement. The district court granted summary judgment on Murthy’s remaining Title VII non-selection claim because he failed to exhaust his administrative remedies when he filed his lawsuit prior to the expiration of Title VII’s 180-day waiting period. Murthy v. Schafer, 579 F. Supp. 2d 110 (D.D.C. 2008).
 

 

Judge(s): Griffith, Rogers, and Tatel
Jurisdiction: U.S. Court of Appeals, D.C. Circuit
Related Categories: Employment
 
Circuit Court Judge(s)
Thomas Griffith
Judith Rogers
David Tatel

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
David Branch Law Office of David A. Branch & Associates PLLC

 
Defendant Lawyer(s) Defendant Law Firm(s)
Alan Burch U.S. Department of Justice
Craig Lawrence U.S. Department of Justice
Ronald Machen, Jr. U.S. Department of Justice

 

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the reasoning in martini applies no less to the 180-day the court concluded that eeoc's power to authorize private of the 180-day period is consistent with the supreme court's 9 employees allegingdiscriminationbythedepartmentindenying judgment in the district court are usually considered to have been cir. 1995). his argument touches upon several complex issues fairness of the settlement agreement. the eeoc denied his a single appeal -- one of the objectives of the final judgment district court, but that risk is minimized here because murthy being brought before a district court." weber v. battista, 494 exclusive jurisdiction over contract claims against the united it is transferred. 2000e-16(c), is forfeited. murthy raised this argument only in rule" and would "risk needless complications." united states ex observation in brown v. general services admininistration, 425 observing that congress had imposed a "mandatory and of $100,000 to $300,000," while he, although also a class agent, rel. hampton v. columbia/hca healthcare corp., 318 f.3d the supreme court's decision in national railroad passenger 7 permitting the eeoc to authorize a private suit before the basu, et al. v. veneman, dep't of agriculture, eeoc no. 100- which it was actually filed in . . . the court from which individualrelief,includingretroactivepromotionsandpayments federal circuit has held that section 1631 permits partial petition and request for reconsideration. accordingly, this court will exercise appellate jurisdiction 3 jurisdiction for want of a final judgment, in the absence of an transferred claims to be bifurcated from untransferred claims. selection claim. settlement agreement than other class agents and was not suits within 180 days would undermine both its statutory david a. branch argued the cause and filed the briefs for do, and we affirm. federal claims and the federal circuit's treatment of partial 180-day waiting period in section 2000e-16(c) as mandatory, him, damages equal to his accumulated lost wages and benefits the eeoc, before filing a lawsuit in the federal district court and settlement agreement claims in count 2 and also the non- transfers, neither the federal district court nor the court of claims "sounding in tort," 28 u.s.c. 1491(a)(1). this court his complaint would contravene eeoc's investigative duty and settlement agreement to the court of federal claims, which has (citing 28 u.s.c. 1292(d)(4)(a)). the question now is 5 provision authorizing lawsuits after 180 days incorporates title district court grantedsummaryjudgmentonmurthy's remaining . . . the court to which it is transferred on the date upon to . . . private lawsuit will be the exception and not the rule,'" dismissal of the untransferred claims. a risk that some part of the case could be transferred back to the 1295(a)(3), the court of federal claims lacks jurisdiction over unqualified" duty on the eeoc to investigate charges and that the legislative history indicated congress "`hoped that recourse decision of the court of federal claims, see 28 u.s.c. agreement and for non-selection to a gs-15 position in violation columbia, 278 f.3d 1, 9 (d.c. cir. 2002). eeoc charge, vacated the district court's judgment, and "was designated to receive only $40,000 and a two step increase prematurely filed or the plaintiff has failed to satisfy a see 42 u.s.c. 2000e-16(c), (d). the reasoning in martini that that any civil suit shall be filed "as provided in 2000e-5," and, second, murthy's argument that he had to file his civil action or appeal shall proceed as if it had been filed in clerk of any formal errors in order that corrections may be made before the illinois." id. at 675, 678. in other circumstances it would be preferable to exercise may authorize private suits, to be a mandatory waiting period. et seq. the district court transferred the contract claims to the have been brought at the time it was filed . . ., and the civil action in the district court 180 days after the filing of a title vii non-selection claim because he failed to exhaust his "up to the 180th day." martini, 178 f.3d at 134647. because that decision necessarily did not reach the merits of his because of the specialized jurisdiction of the court of to resolve charges through conciliation; in the absence of an judgment on the title vii non-selection claim, the district court states for more than $10,000, see 28 u.s.c. 1491(a)(1); "resolution up to the 180th day." martini, 178 f.3d at 134647 initiating a class charge filed with the equal employment 10 2006 seeking promotion to gs-15, and on august 17, 2006 appellee. with him on the brief were ronald c. machen, jr., permitting exceptions would undermine the purpose of the 180- sought to allow a period for the eeoc to investigate and attempt matured, or the precondition has been satisfied." restatement i. martini, 178 f.3d at 1348. however, where an action is futility based upon eeoc's lack of resources, and finding no amended complaint after the 180-day period expired cannot cure investigatorydutyandcongress'policyofencouraginginformal a federal employee must wait 180 days, absent final action by when the department denied him promotions to gs-15 in june "tag[] along" with the transferred counts to best effectuate "[t]he and murthy provides no reason to read it otherwise. although contract claims for breach of the settlement agreement. the no. 09-5026 day waiting period in section 2000e-5(f)(1) supports reading the alan burch, assistant u.s. attorney, argued the cause for federal claims has no jurisdiction over title vii claims." the emotional harm. transfers to the court of federal claims and considers for the district of columbia circuit title vii permits an aggrieved federal employee to file a court of federal claims pursuant to 28 u.s.c. 1631 and schafer, 579 f. supp. 2d 110 (d.d.c. 2008). 2006 -- 131 days after filing his august 17, 2006 eeoc charge regardingtitlevii'sadministrativeexhaustionrequirementsand expiration of title vii's 180-day waiting period. murthy v. remanded the case with instructions for the district court to dismissed claim. this is such a case. were this court to decline cmplt. 17. he sought placement in a gs-15 or comparable in violation of title vii when he was provided "significantly opportunity commission ("eeoc") by asian/pacific islander worded somewhat differently, the 180-day period in section action related to his contract claims within 90 days of the efficiencies given the "greater probabilities that circumstances of the transfer of the contract claims for lack of jurisdiction. however, the court of federal claims and the federal circuit when the eeoc has failed to take final action. as with f.3d 179, 18384 (d.c. cir. 2007). at his current grade 14 step 8 position." cmplt. 10. murthy judgment on the title vii non-selection claim would requirement, the court held that martini's lawsuit was untimely court dismissed one of four counts in a complaint and ordered federal claims could exercise jurisdiction over all of the claims to exercise appellate jurisdiction, the grant of summary before: rogers, tatel and griffith, circuit judges. because it was filed less than 180 days after the filing of the f.2d 944, 94647 (d.c. cir. 1983)); see also ali v. dist. of interest of justice, transfer such action or appeal to any see united states v. county of cook, ill., 170 f.3d 1084, 1089 congress determined lawsuits could be filed in federal district v. regarding whether after morgan "a claim arising after the filing bound volumes go to press. [to] . . . flow[] to the transferee circuit," the court stated that the united states court of appeals when hill appealed the dismissal, this court held that it lacked by order of july 10, 2009 this court dismissed murthy's appeal are courts of specialized jurisdiction. although the federal will moot dismissal of the appeal (e.g., by overall settlement, or section 2000e-5(f)(1), as interpreted in martini. congress f.3d at 674. viewing "the appealability of the claim dismissal as well as future lost wages, and damages for financial and mortgage ass'n, 178 f.3d 1336, 1347 (d.c. cir. 1999), this illinois based on venue. id. at 672 (citing 28 u.s.c. 1404(a)). a civil action for lack of jurisdiction. section 1631 provides: between the two (hypothetical) appeals will overlap." hill, 195 passed. three of the six class agents received "significant and retaliation relative to the other class agents were primarily (second) of judgments 20(2) (2009). the secretary sought rescission of the settlement agreement as it applied to 214, 217 (d.c. cir. 2003); see also united states v. county of the district court transferred murthy's breach of the the remaining counts transferred to the northern district of 2000e-16(c) serves the same purpose as the 180-day period in acknowledges in his brief that such a new claim "would not face promotions. cmplt. 6. a settlement agreement of the class district court reasoned that murthy's claims of discrimination period in section 2000e-16(c). section 2000e-16 provides that provisions, 42 u.s.c. 2000e-5. the court interpreted the 180- e.g., i.a.m. nat'l pension fund v. indus. gear mfg. co., 723 delay," given the separability of the affected claims. but here argued may 12, 2010 decided june 25, 2010 charge with the eeoc, when the eeoc has taken no final 2 by a recovery on one of the claims that effectively compensates specifically, that section 2000e-5(f) through (k) shall govern. claims nor the federal circuit upon appeal will review the observed in greenhill, 482 f.3d at 574, that "the court of federal reporter or u.s.app.d.c. reports. users are requested to notify the did not dismiss murthy's complaint without prejudice, as in over the grant of summary judgment on murthy's title vii non- new basis for arguing exhaustion." appellee's br. at 23 (citing, 6 granted summary judgment on the title vii non-selection claim less relief" under the settlement agreement than other class department of agriculture, court by an aggrieved party. this conclusion about the purpose circuit has exclusive jurisdiction over an appeal from a final discrimination and reprisal when he was not selected for a gs- 8 title vii non-selection claim and permitting the federal circuit murthy's attempts to avoid the consequences of the promotions to gs-15 and has consequently filed equal because he was provided "significantly less" under the according to his complaint, dr. krishna murthy worked at required where the transferee court could not adjudicate the ii. department and later complained to the eeoc contesting the recently as a gs-14, step 10 veterinarian in food safety and judgment by the [district court in the] northern district of (fed. cir. 1999). as a result, neither the court of federal appeal from the united states district court finally, contrary to murthy's suggestion, res judicata will -- murthy filed a complaint in the federal district court. in cure his failure to exhaust administrative remedies by amending of administrative and judicial enforcement powers," and that the precondition to suit, a final judgment for the defendant "does not order under federal rule of civil procedure 54(b). hill, 195 reuber v. united states, 773 f.2d 1367 (d.c. cir. 1985), appellate jurisdiction based upon a rule 54(b) order in which the after he exhausts his eeoc remedies. in granting summary (no. 1:06-cv-02208-rjl) seventh circuit court of appeals "on the issuance of a final accordingly, we affirm the grant of summary judgment. (quoting 118 cong. rec. 7168). rejecting a suggestion of f.3d at 674. the court stated that the dismissed count should ordinarily, the principles in hill would counsel declining action. 42 u.s.c. 2000e-16(c). in martini v. federal national krishna murthy, equitable considerations warranting an exception to the 180-day not bar the filing of a new title vii non-selection civil action count one, he alleged discrimination in violation of title vii "exemplary" performance, he was "repeatedly" denied and august 2006. he also alleged discrimination and retaliation dismiss the complaint without prejudice. see id. at 1348. iii. eeoc's september 2006 decision on those claims, see 42 u.s.c. district court made the required finding of "no just reason for vii's enforcement provisions, see id. at 832. expiration of the 180-day period in martini, allowing murthy to whenever a civil action is filed in a [qualifying administrative remedies when he filed his lawsuit prior to the court construed the 180-day period in title vii's enforcement agents and was not provided timely notice of his right to object. 15 associate deputy administrator position. on december 26, aggrieved federal employee may file a civil action "after one been approved until after the thirty-day period to object had remaining title vii non-selection claim. we conclude that we the u.s.departmentofagriculture for twenty-seven years, most dismissal of claims seemed more likely to achieve these department. cmplt. 5. he also was "instrumental" in to undertake eventual review of all of the claims in murthy's appellant appellant. forfailuretoexhaustadministrativeremedies. murthyappealed. opinion for the court by circuit judge rogers. waived on appeal," whelan v. abell, 48 f.3d 1247, 1251 (d.c has not appealed the transfer order to the federal circuit, see 28 u.s. 820, 83233 (1976), that the filing of lawsuits by federal in murthy's complaint. this court recognized in hill, 195 f.3d passed, see fed. r. app. p. 4(a)(1)(b). jurisdiction over the grant of summary judgment on murthy's other such court in which the action or appeal could position and compensatory damages, including front and back at 678, that an exception to the tag-along approach might be for the district of columbia promotion claims in count 1 determined to arise under the efficiencies sought to be achieved by the final judgment rule." provided timely notice of his right to object. cmplt. 18. he appellee alleging a violation of the settlement agreement and his motion to alter or amend the judgment pursuant to federal whether, despite the transfer of some claims, this court has pay and benefits. in count two, he alleged breach of contract rogers, circuit judge: dr. krishna murthy sued the jurisdiction to review the grant of summary judgment on the greenhill v. spellings, 482 f.3d 569, 572 (d.c. cir. 2007). the u.s.c. 1292(d)(4)(a), and the deadline for such an appeal has hundred and eighty days from the filing of the initial charge" complaint, including the title vii non-selection claim. dismissed count would be subject to appellate review by the murthy v. vilsack, order, no. 09-5026 (d.c. cir. july 10, 2009) id. the court reasoned that unlike dismissal of parties, see agency's [office of equal employment opportunity] before plaintiff for loss under the dismissed claim), and that issues pursuant to 28 u.s.c. 1631, the district court may transfer of title vii of the civil rights act of 1964, 42 u.s.c. 2000e res judicata problems from the district court's decision here notice: this opinion is subject to formal revision before publication in the of a formal administrative complaint must be raised with . . . [an] filed a notice of breach of the settlement agreement with the want of jurisdiction, the court shall, if it is in the the failure to exhaust. section 2000e-16(c) provides an federal] court . . . and that court finds that there is a rule of civil procedure 59(e), and "issues not raised before employment opportunity ("eeo") complaints against the day period in 42 u.s.c. 2000e-5(f)(1), under which the eeoc 4 murthy then filed two charges with the eeoc: on june 28, a1-7863x. however, murthy did not learn the settlement had undermine congress' policy of encouraging informal resolution corp. v. morgan, 536 u.s. 101 (2002), none of which has been thomas j. vilsack, secretary, united states bar another action by the plaintiff instituted after the claim has adequately briefed. moreover, there is a split in the circuits in hill v. henderson, 195 f.3d 671 (d.c. cir. 1999), the district charge was approved by the eeoc in december 2004. arun c. agreeable resolution or when the eeoc took no action, inspection services. throughout his tenure, despite his employees "after 180 days" is part of title vii's "careful blend u.s. attorney, and r. craig lawrence, assistant u.s. attorney. "completely elude review," hill, 195 f.3d at 676. there may be requiring a rule 54(b) certification "would . . . not ensure only secretary of agriculture for breach of the terms of a settlement mandatory 180-day waiting period fail. first, the filing of an cook, ill., 167 f.3d 381, 384 (7th cir. 1999).


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