Alfredo D. Echeverria, Appellant,v.Harvey B. Gantt, Chairman, National Capital Planning Commission, Agency.

Equal Employment Opportunity CommissionSep 7, 1999
01994721 (E.E.O.C. Sep. 7, 1999)

01994721

09-07-1999

Alfredo D. Echeverria, Appellant, v. Harvey B. Gantt, Chairman, National Capital Planning Commission, Agency.


Alfredo D. Echeverria, )

Appellant, )

)

v. )

) Appeal No. 01994721

Harvey B. Gantt, ) Agency No. 01-99

Chairman, )

National Capital Planning )

Commission, )

Agency. )

)

)

DECISION

Appellant filed a timely appeal with this Commission from a final agency

decision (�FAD�) concerning his complaint of employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e et seq. and the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. �621 et seq. In his complaint, appellant

alleged that he was subjected to discrimination on the basis of national

origin (Hispanic), age (DOB: 11/12/35) and reprisal (prior EEO activity),

when: (1) on June 10, 1998, he was informed that he had not been selected

for the position of Assistant Executive Director for Regional Planning

(�AEDRP�); and (2) on September 2, 1998, he was informed that another

individual had been selected for the position of Associate Executive

Director (Management) (�AEDM�). The FAD was received by appellant on

April 23, 1999. The appeal was received by the Commission on May 24,

1999. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE

The issue on appeal is whether the agency properly dismissed the complaint

due to untimely EEO Counselor contact.

BACKGROUND

The record reveals that appellant, an architect, had been seeking

employment with the agency since 1997. Upon learning of the AEDRP

position, appellant applied for the position, but was notified

on June 10, 1998, that he had not been selected. On July 2, 1998,

appellant became aware of the AEDM position while accessing the United

States Office of Personnel Management's website listing current federal

employment vacancies. The abbreviated vacancy announcement for the AEDM

position stated that the application period closed on August 3, 1998,

and that prospective applicants needed to complete a request form to

receive the full announcement. Appellant requested the announcement

using the Internet. He also took the precaution of sending a written

request through the mail.

After not receiving the announcement, appellant telephoned the agency on

September 2, 1998, to inquire about his request. During the conversation,

he learned that the agency had filled the AEDM vacancy. Believing that

the agency's delay in sending him the announcement was discriminatory,

appellant telephoned the Executive Director of the agency on September

17, 1998, to receive information on how to file an equal employment

opportunity (�EEO�) complaint. The agency thereafter faxed appellant

information regarding federal sector EEO complaint processing.

Based on the faxed information, appellant submitted to the agency a

written request for EEO counseling on September 22, 1998. Unable to

resolve the matters informally, appellant filed a formal complaint on

January 13, 1999, alleging discrimination as referenced above. On April

21, 1999, the agency issued a final decision dismissing appellant's

complaint due to untimely EEO Counselor contact. The agency stated that

since the vacancy announcement provided a closing date of August 3, 1998,

appellant should have contacted an agency EEO counselor within 45 days

of that date.

On appeal, appellant contends that September 2, 1998 was the date he

learned of the selection for the AEDM position and thus was the date

he became aware of the discrimination, and that he did not become aware

that his prior nonselection for the AEDRP was also discriminatory until

September 2, 1998. Appellant also contends that the agency improperly

delegated its authority to issue a final decision to the Federal Election

Commission (�FEC�).<1>

ANALYSIS

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints

of discrimination should be brought to the attention of the Equal

Employment Opportunity Counselor within forty-five (45) days of the

date of the matter alleged to be discriminatory or, in the case of a

personnel action, within forty-five (45) days of the effective date of

the action. The Commission has adopted a "reasonable suspicion" standard

to determine when the forty-five (45) day limitation period is triggered.

See Ball v. United States Postal Service, EEOC Request No. 05880247

(July 6, 1988). Thus, the time limitation can be triggered before all

the facts that support a charge of discrimination have become apparent,

but not until a complainant reasonably suspects discrimination.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

In this case, appellant contends that he did not have a reasonable

suspicion of discrimination until September 2, 1998, when the agency

informed him of the selection for the AEDM position. Appellant states

that before learning of the selection, he believed that the agency's

inaction was typical agency bureaucracy, in that in the past it had failed

to timely respond to other requests and had often extended announcement

deadlines. The agency contends that the reasonable date for appellant

to have suspected discrimination was August 3, 1998, the closing date

for the position.

In reviewing the evidence, we agree with the agency and find that the

closing date of the position should have triggered appellant to inquire

as to the status of his application. Regardless of the appellant's

past experience with the agency, he was aware that the vacancy closed

on August 3, 1998. As such, it is reasonable to conclude that if a

prospective applicant had not received requested vacancy information,

he would have contacted the agency by the closing date of the vacancy.

However, we also find that appellant made his initial contact for EEO

counseling on September 17, 1998, when he telephoned the agency for

information on how to file a formal EEO complaint. This request for

counseling was made exactly 45 days after the closing of the vacancy

announcement, and thus within the time limits of our regulations.

Accordingly, we find that the agency erred in dismissing the portion of

appellant's complaint that addressed the AEDM position.

Appellant also contends that the agency's action with regard to

the AEDM position was not an isolated incident, but was continuing

violation which began with his nonselection for the AEDRP position.

The Commission has held that the time requirements for initiating EEO

counseling could be waived as to certain allegations within a complaint

when the complainant alleged a continuing violation; that is, a series of

related discriminatory acts, one of which fell within the time period for

contacting an EEO Counselor. See Reid v. Department of Commerce, EEOC

Request No. 05970705 (Apr. 22, 1999); McGivern v. U.S. Postal Service,

EEOC Request No. 05901150 (Dec. 28, 1990).

A determination of whether a series of discrete acts constitutes a

continuing violation depends on the interrelatedness of the past and

present acts. Berry v. Board of Supervisors of Louisiana State Univ.,

715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).

It is necessary to determine whether the acts are interrelated by a common

nexus or theme. See Maldonado v. Department of the Interior, EEOC Request

No. 05900937 (Oct. 31, 1990); Verkennes v. Department of Defense, EEOC

Request No. 05900700 (Sept. 21, 1990); Vissing v. Nuclear Regulatory

Commission, EEOC Request No. 05890308 (June 13, 1989). Should such

a nexus exist, appellant will have established a continuing violation

and the agency would be obligated to "overlook the untimeliness of the

complaint with respect to some of the acts" challenged by appellant.

Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).

It is well settled that where, as here, there is an issue of timeliness,

�[a]n agency always bears the burden of obtaining sufficient information

to support a reasoned determination as to timeliness.� Williams

v. Department of Defense, EEOC Request No. 05920506 (Aug. 25, 1992).

Moreover, where, as here, a complainant alleges "recurring incidents"

of discrimination, �an agency is obligated to initiate an inquiry

into whether any allegations untimely raised fall within the ambit of

the continuing violation theory.� Guy v. Department of Energy, EEOC

Request No. 05930703 (Dec. 16, 1993)(citing Williams, supra). As the

Commission further held in Williams, where an agency's final decision

fails to address the issue of continuing violation, the complaint �must be

remanded for consideration of this question and issuance of a new final

agency decision making a specific determination under the continuing

violation theory.� Since the agency failed to address appellant's

continuing violation claim in this case, we remand for a determination

as to whether the appellant's prior nonselection for the AEDRP position

was part of a continuing violation.

CONCLUSION

Accordingly, the agency's decision to dismiss appellant's complaint is

VACATED, and the complaint is REMANDED for further processing consistent

with this decision and all applicable regulations.

ORDER

The agency is ORDERED to process the remanded complaint in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be submitted with your

request for reconsideration. The Commission will consider requests

for reconsideration filed after the deadline only in very limited

circumstances. See 29 C.F.R. � 1614.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. It is the position of the Commission that you

have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. In the alternative,

you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. If you file a civil action, YOU MUST NAME

AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY

HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME

AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. �Agency� or �department� means the national organization,

and not the local office, facility or department in which you work.

Filing a civil action will terminate the administrative processing of

your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil

action must be

filed within the time limits as stated in the paragraph above ("Right

to File A Civil Action").

FOR THE COMMISSION:

September 7, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 Because individuals

in the agency's EEO office were named in

appellant's complaint, the agency requested that

the FEC process appellant's complaint. We note

that this is a common practice used to ensure

impartiality and find no error in the agency's

use of the FEC in this case.