Unpublished Disposition, 900 F.2d 262 (9th Cir. 1985)

MEMORANDUM^* 

Lawrence Arnolie, Jr., appeals from the district court's grant of summary judgment in favor of the Department of the Navy in Arnolie's Title VII action. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

FACTS

Arnolie is a black male. He was hired by the Navy as a quality assurance specialist in 1981. Arnolie received satisfactory evaluations while in this position. In February 1984 he was promoted to the GS-9 grade level. Later in 1984, Arnolie requested reassignment to the shipbuilding division in San Francisco. The Navy approved Arnolie's request. It assigned him to the nuclear ship division in San Francisco where he began work on January 6, 1985, under the supervision of James Maloney. On February 2, 1985, Arnolie became eligible for promotion to the GS-11 grade level. The Navy did not promote Arnolie but instead relocated him from James Maloney's unit to Richard Criswell's.

Criswell gave Arnolie a satisfactory written work performance evaluation in April 1985. On December 10, 1985, after Criswell allegedly failed to give Arnolie a midyear evaluation, Arnolie filed an informal employment discrimination complaint with an EEOC counselor. Between the date Arnolie became eligible for the GS-11 grade and the date he filed his initial complaint, the Navy hired two white females at grade GS-11. The Navy promoted one of these females from within Arnolie's division in February 1985 and hired the other from outside the division in August 1985.

In April 1986, Arnolie received another satisfactory evaluation from Criswell. The Navy subsequently transferred Arnolie to another unit under the supervision of Lula Taylor, a black female. Arnolie was ultimately promoted to the GS-11 grade level in October 1987.

In July 1987, after receiving an unfavorable administrative ruling from the EEOC, Arnolie filed a pro se Title VII complaint in the district court. Arnolie then obtained court-appointed counsel, and filed a second amended complaint alleging employment discrimination based on race and sex, as well as retaliation. Arnolie sought compensation for back pay, an award of front pay, damages for lost promotional opportunities, prejudgment interest, and attorney fees. He also sought an injunction against what he alleged to be the Navy's utilization of racially and sexually discriminatory employment practices.

The district court granted summary judgment in favor of the Navy. It held that Arnolie had not filed his initial informal complaint with the EEOC timely, had not exhausted his administrative remedies with respect to the sex discrimination and retaliation claims, and had not made a showing sufficient to establish a prima facie case on any of his claims.

DISCUSSION

To maintain an action for damages under Title VII, a federal employee must timely file an informal administrative complaint with the EEOC concerning any alleged discriminatory act. Arnolie had thirty days from the alleged discriminatory event in which to file his informal complaint. See 29 C.F.R. Sec. 1613.214(a) (i). The district court determined that Arnolie failed to identify a discriminatory event within the thirty days preceding December 10, 1985, when Arnolie filed his informal complaint. Arnolie argues the Navy's failure to give him a midyear review in November 1985 was a discriminatory act aimed at preventing his promotion to the GS-11 grade level. He also contends the Navy's failure to promote him was part of a continuing violation of Title VII.

We review the district court's grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). We note that "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Moreover, a party may not rely simply on his pleadings, Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir. 1984), but must provide some "significant probative evidence tending to support" his allegations. First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968).

Arnolie did not raise the Navy's alleged failure to give him a midyear review in either his informal complaint to the EEOC or in his formal complaint to the Navy. Nor did Arnolie include this allegation in any of his complaints in the district court. From the face of his second amended complaint, it appeared that Arnolie's initial informal EEOC complaint was not filed within the requisite thirty-day period. The Navy thus filed a motion for summary judgment for failure to exhaust administrative remedies. Arnolie then filed his memorandum in opposition to the Navy's motion. In this memorandum Arnolie for the first time alleged that the Navy had failed to provide him with a required midyear review.

Failure to receive an evaluation can be the basis for a discrimination claim under Title VII. Cf. Collins v. Illinois, 830 F.2d 692, 698-99 (7th Cir. 1987) (holding that plaintiff had stated a prima facie case when she was evaluated more often than nonminority employees). But to state a prima facie case on this claim, Arnolie must show that the Navy was in some way required to provide him with a review in November 1985. This could either be a formal requirement pursuant to personnel regulations or an informal requirement pursuant to unwritten policies and practices. Not coincidentally, this element of Arnolie's prima facie case is directly related to whether or not Arnolie timely filed his initial EEOC complaint. If the Navy did not fail to give Arnolie a required review at least thirty days prior to the filing of his initial EEOC complaint, then Arnolie would not have timely filed that complaint and his district court action would be barred. See Boyd v. United States Postal Serv., 752 F.2d 410, 414-15 (9th Cir. 1985).

To support his contention that the Navy failed to give him a required midyear review, Arnolie cites the following from the Navy EEOC investigator's report:

"Complainant's immediate supervisor, Mr. Criswell, contends that Complainant did not receive a mid-year review because he filed an informal EEO Complaint and a subsequent formal EEO Complaint.... Based on the evidence presented, Management erred by not complying with the performance appraisal system and using as a basis the filing of an EEO Complaint by Complainant.

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"Complainant's performance appraisal of record dated 14 January 1985 (Exhibit 15) documents his performance as satisfactory. Since management failed to provide Complainant with written performance standards, as documented in Exhibit 6, for the period January 1985 to January 1986, Complainant's performance appraisal of record dated 14 January 1985 (Exhibit 15) stands on its merits. Complainant has performed as a Quality Assurance Specialist, GS-9 since 5 February 1984 (Exhibit 16), therefore, he meets the eligibility requirements for promotion."

Appellant's Reply Brief at 5-6 (quoting Investigation Report of Marie E. Robichau at 2, 5).

This evidence does not create a genuine issue of material fact concerning whether the Navy was required to evaluate Arnolie within the thirty days preceding December 10, 1985.

Except for the investigator's report quoted above, Arnolie has presented no evidence to show that the Navy was required to give him any type of review in November 1985. He has produced no personnel regulations to this effect nor has he produced any evidence to show that other persons similarly situated received evaluations during this period.¹ 

Turning to the investigator's report, the EEOC investigator stated that Arnolie's supervisors failed to review Arnolie "for the period January 1985 to January 1986." If Arnolie was entitled to be evaluated for the period from January 1985 to January 1986, as this evidence suggests, such an evaluation would have to be made sometime in or after January 1986; otherwise, Arnolie's performance for the full stated period could not be evaluated. If the report was due "midyear," this would suggest an evaluation should have been made sometime between January 1985 and January 1986, or perhaps sometime during the calendar year. Arnolie provides no evidence, however, as to when in such a twelve-month period the evaluation should have been made. On the other hand, the Navy's reason for not providing the evaluation, according to the investigator's report, was that Arnolie had filed his informal EEOC complaint. He did this in December 1985. This lends further support to the inference that no evaluation was due until some date after the December filing of the EEOC complaint.

We conclude that Arnolie has come forward with no evidence to show that the Navy was required to give him any type of review in November 1985. Accordingly, we affirm the district court's holding that Arnolie failed to identify a discriminatory event within the thirty days preceding the filing of his informal EEOC complaint.

Arnolie next contends that every day the Navy failed to promote him constituted a separate act of discrimination. Thus, he argues, his informal EEOC complaint filed in December 1985, was timely filed.

This argument is premised on a "continuing violation theory generally ... applied in the context of a continuing policy and practice of discrimination on a company-wide basis." Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480 (9th Cir. 1989).²  Arnolie contends that the Navy's practice of requiring the recommendation of the managers in the engineering division for promotion from GS-9 to GS-11 constituted a continuing policy and practice of discrimination against blacks. But Arnolie can point to no facts to support such an allegation. To the contrary, in 1985 there were eight quality assurance specialists in the engineering division at the GS-11 level. These eight consisted of two white women, two black men, one black woman, and three Asian men. Arnolie does not dispute this evidence, even though it refutes his conclusory allegation that the Navy maintained a continuing policy and practice of discrimination against blacks in promotions to the GS-11 grade level.

Because we agree with the district court that Arnolie's Title VII action is barred by his failure to file a timely EEOC complaint, we do not reach the other issues he argues in this appeal.

AFFIRMED.