                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                            )
PAMELA MONTGOMERY           )
BECKHAM,                    )
                            )
         Plaintiff,         )
                            )
     v.                     )                         Civil Action No. 08-172 (RMC)
                            )
NATIONAL RAILROAD PASSENGER )
CORPORATION,                )
                            )
         Defendant.         )
                            )


                                  MEMORANDUM OPINION

               Pamela Montgomery Beckham sues Defendant National Railroad Passenger

Corporation (Amtrak) for a failure to promote and retaliation in violation of Title VII of the Civil

Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e et seq., on the basis of her race.

On December 10, 2008, the Court denied Amtrak’s motion to dismiss, finding that Ms. Beckham

had timely filed a charge with the Equal Employment Opportunity Commission (“EEOC”), despite

her having failed to timely file a formal “Charge of Discrimination,” because her completed and

timely filed “Charge Questionnaire” was sufficient to constitute a “charge.” See Dkt. # 10.

However, at the Initial Scheduling Conference held in open Court on February 20, 2009, the Court

questioned whether Ms. Beckham complained of a racially discriminatory failure to promote in the

Charge Questionnaire and ordered the parties to brief the issue, see Dkt. # 16, which the parties have

now done. For the reasons explained herein, the Court finds that the Charge Questionnaire is too

vague and circumscribed to constitute a complaint of a racially discriminatory failure to promote,
and the failure to promote claim will be dismissed.

                                           I. FACTS1

               Ms. Beckham is an African-American woman who has been employed by Amtrak

since 1989. She was initially hired as a Train Attendant and is currently a Senior Analyst in the

Office of Service Standards located in Wilmington, Delaware.

               On November 10, 2005, Ms. Beckham completed and filed a Charge Questionnaire

with the EEOC. In response to the question “[w]hat action was taken against you that you believe

to be discriminatory?[,]” Ms. Beckham answered:2

               Hired white female that I am presently training in the Service
               Standards department: White female (Monika Sloane) . . . . When
               Monika was given the job of Director of Service Standards I was told
               before she came that they needed someone up and running. Well all
               the program[s] that she works with have been self taught. While I am
               attending school (Villa Julie College) to get my Master[’s] and have
               learned these same program[s]. Where I feel I have the up on Monika
               is that I know Standards and have been writing them (with the
               assistance of the various departments) for nearly five years.

Pl.’s Opp’n to Def.’s Mot. to Dismiss Failure to Promote Claim (“Pl.’s Opp’n”), Ex. 1 (Plaintiff’s

completed Charge Questionnaire). The Charge Questionnaire was filed 299 days after Amtrak hired

Ms. Sloane, just one day shy of the 300 days within which Ms. Beckham was required to file with

the EEOC.3 It is the only one of Ms. Beckham’s filings that was timely filed with respect to her


       1
         For a more complete recitation of the facts concerning Ms. Beckham’s other allegations,
see the Court’s December 10, 2008 Memorandum Opinion [Dkt. # 10].
       2
         Ms. Beckham’s response was in her own handwriting, and the Court has done its best to
transcribe what she wrote accurately.
       3
         The parties agree that Ms. Sloane was hired on January 16, 2005. Because Delaware is a
“deferral state,” Ms. Beckham had 300 days from the time of the alleged discriminatory act to file
a charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); Riley v. Del. River & Bay Auth., 457 F.

                                               -2-
failure to promote claim.

               On December 19, 2005, Ms. Beckham wrote a letter to the EEOC explaining that

“[a]fter more than a year of racial job discrimination and harassment, on November 10, 2005[,] I

found no other alternative except to visit the Equal Employment Opportunity Commission to file a

formal complaint.” Pl.’s Opp’n, Ex. 4 (Plaintiff’s December 19, 2005 Letter to EEOC). She

elaborated that:

               On October 31, 2004[,] I submitted my application and resume for the
               position of Direction [sic] of Service Standards & Operations (Job
               Reference # 50184625). When several weeks had gone by and I had
               not been notified as to the date I would be interviewing I spoke to Mr.
               Nogar, Senior Director of Service Delivery . . . [a]t which time he
               informed me that he would not be interviewing me because he needed
               someone with graphic arts background. . . . [T]he previous summer
               (July 2004) I began working towards my Master’s in Advance[d]
               Business Information Technology (I am expected to graduate May
               2006) at Villa Julie College, in Stevenson, Maryland. . . . I was [also]
               taking classes in graphic art and design. So I was a little surprise[d]
               to hear that I was not qualified for either an interview or the position.
               David Nogar hired Monika Sloane in [sic] the position of Director of
               Service Standards & Operations on January 15, 2005 . . . .
               Consequently I felt that Mr. Nogar wrote the job description
               purposely this way as to eliminate me as a candidate. . . . In my
               opinion this was a deliberate attempt (and it worked) to keep an
               African American (including myself) from obtaining the position.
               David Nogar hired a director that has to be directed by her
               subordinate.

Id. at 1-2.

               On December 21, 2005, Ms. Beckham filed a “Selection Questionnaire” with the

EEOC. See Pl.’s Opp’n, Ex. 5 (Plaintiff’s completed Selection Questionnaire). In response to the



Supp. 2d 505, 510 (D. Del. 2006). A cause of action for failure to promote under Title VII accrues
when the employer fills the position. See Williams v. Giant Food Inc., 370 F.3d 423, 428 n.2 (4th
Cir. 2004).

                                                 -3-
prompt “[n]ame of position you applied for” she wrote “Director of Service Standards + Operations.”

Id. at question 1. She said she applied for the position in writing on October 31, 2004, see id. at

questions 6 & 7, but that “I was never granted an interview, though I had been the incumbent.” Id.

at question 9. Ms. Beckham said that Monika Sloane, a white female, was selected and that she

believed she was not selected because of her race. See id. at questions 15, 16 & 20.

               On January 26, 2006, Ms. Beckham filed a formal “Charge of Discrimination” with

the EEOC. See Def.’s Mem. in Supp. of Mot. to Dismiss Complaint, Ex. 1 (Plaintiff’s completed

Charge of Discrimination). She charged:

               Mr. Nogar denied me the opportunity to compete for the vacancy for
               which Ms. Sloane was selected. I was denied the opportunity to
               interview because I did not meet one of the requirements indicated on
               the job posting. Upon information and belief, I was not selected
               because I lacked graphics skills as Mr. Nogar wanted the selected
               individual to be able to come into the job up and running. More
               specifically, 85% if [sic] the job was graphics [and] 15% service
               standards. Ms. Sloane, the successful candidate[,] was not able to
               perform the functions of the job and spent much of her time training
               and taking courses which allowed her to perform her duties.

Id. at 2.

               The EEOC investigated the charge and determined that reasonable cause exists to

believe that Amtrak violated Title VII. Compl. ¶ 17. On October 29, 2007, the EEOC issued a

Notice of Right to Sue to Ms. Beckham. Id. ¶ 19. On January 29, 2008, Ms. Beckham filed this

lawsuit alleging, inter alia, that Amtrak discriminated against her on the basis of race by failing to

promote her. Id. ¶¶ 12-14 & Count I.




                                                 -4-
                                     II. LEGAL STANDARD

                  Amtrak does not specify whether it is moving to dismiss Ms. Beckham’s failure to

promote claim under Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6). The substance of the

motion is that Ms. Beckham failed to exhaust her administrative remedies as to that claim because

the Charge Questionnaire did not complain about a racially discriminatory failure to promote. While

the recent trend in this district is to treat motions to dismiss for failure to exhaust Title VII

administrative remedies as motions to dismiss for failure to state a claim under Rule 12(b)(6),4 the

Court will treat Amtrak’s motion as a motion for partial summary judgment under Rule 56 because

resolution of the motion requires the Court to look outside the pleadings. See Fed. R. Civ. P. 12(d).

                  Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be

granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247 (1986); see also Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir.

1995). Moreover, summary judgment is properly granted against a party who “after adequate time

for discovery and upon motion . . . 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

                  In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.



         4
             See, e.g., Marcelus v. Corr. Corp. of Am., 540 F. Supp. 2d 231, 234-35 & n.4 (D.D.C.
2008).

                                                 -5-
Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the nonmoving

party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671,

675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a

reasonable jury to find in its favor. Id. at 675. If the evidence “is merely colorable, or is not

significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50

(citations omitted).

                                          III. ANALYSIS

               “The statutory scheme of Title VII requires a plaintiff to exhaust his or her

administrative remedies before a civil action may be filed in federal court.” Robinson-Reeder v. Am.

Council on Educ., 532 F. Supp. 2d 6, 12 (D.D.C. 2008). “To do so, an aggrieved party must file a

charge with the EEOC alleging that the employer has engaged in an unlawful employment practice.”

Id. “A Title VII lawsuit following the EEOC charge is limited in scope to claims that are ‘like or

reasonably related to the allegations of the charge and growing out of such allegations.’” Park v.

Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d

497, 500 (7th Cir. 1994)). “A vague or circumscribed EEOC charge will not satisfy the exhaustion

requirement for claims it does not fairly embrace.” Marshall v. Fed. Express Corp., 130 F.3d 1095,

1098 (D.C. Cir. 1997). “Naturally every detail of the eventual complaint need not be presaged in the

EEOC filing, but the substance of . . . a Title VII claim . . . must fall within the scope of ‘the

administrative investigation that can reasonably be expected to follow the charge of discrimination.’”

Id. (quoting Park, 71 F.3d at 907).




                                                  -6-
               The Court finds that the allegations in the Charge Questionnaire are, in and of

themselves, too vague and circumscribed to constitute a complaint of a racially discriminatory

failure to promote. Ms. Beckham complained only that Amtrak hired Ms. Sloane, a white female,

and that Ms. Beckham was required to train her even though Ms. Sloane was supposed to be “up and

running.” Ms. Beckham made no allegation that Amtrak hired Ms. Sloane into a position for which

Ms. Beckham had applied or that Ms. Sloane was selected over Ms. Beckham because of racial

considerations. Those allegations are not mere peripheral details that may be omitted from a failure

to promote charge; they are indispensable allegations that form the basis of the charge.

               The issue remains whether Ms. Beckham’s subsequent EEOC filings may be

considered amendments to the Charge Questionnaire that “clarify and amplify allegations made

therein.” 29 C.F.R. § 1601.12(b).5 “[T]hese additional allegations cannot expand the scope of the

allegations in [Plaintiff’s] original charge; they only may ‘clarify or amplify’ the allegations in the

charge.” Cheek, 31 F.3d at 503. The Court finds that Ms. Beckham’s subsequent EEOC filings do

more than “clarify and amplify” her allegations in the Charge Questionnaire; they expand the scope

of her allegations by adding crucial facts not found in the Charge Questionnaire. Accordingly, they

do not constitute amendments to the allegations in the Charge Questionnaire but rather new

allegations. Because these subsequent allegations were not timely filed with the EEOC, Ms.

Beckham cannot raise them here.




       5
        “Such amendments . . . will relate back to the date the charge was first received.” 29 C.F.R.
§ 1601.12(b).

                                                 -7-
                                     IV. CONCLUSION

              For the foregoing reasons, the Court will grant Amtrak’s motion for partial dismissal

[Dkt. # 18] and will dismiss the failure to promote claim. A memorializing Order accompanies this

Memorandum Opinion.



DATE: July 21, 2009                                        /s/
                                            ROSEMARY M. COLLYER
                                            United States District Judge




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