Arnold I. Anisman, Appellant,v.Larry H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 1, 1999
01994634 (E.E.O.C. Nov. 1, 1999)

01994634

11-01-1999

Arnold I. Anisman, Appellant, v. Larry H. Summers, Secretary, Department of the Treasury, Agency.


Arnold I. Anisman v. Department of the Treasury

01994634

November 1, 1999

Arnold I. Anisman, )

Appellant, )

)

v. )

) Appeal No. 01994634

Larry H. Summers, ) Agency No. 97-2105

Secretary, )

Department of the Treasury, )

Agency. )

______________________________)

DECISION

On May 17, 1999, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated April 2, 1999, dismissing

two allegations from his complaint for untimely counselor contact.

The Commission accepts the appeal in accordance with EEOC Order No. 960,

as amended.

On October 10, 1996 appellant contacted the EEO office regarding

allegations of discrimination based on sex. Informal efforts to resolve

appellant's concerns were unsuccessful. Accordingly, on January 27,

1997, appellant filed a formal complaint, alleging:

On September 23, 1996, he was not selected for promotion to Attorney

(Estate Tax), GS-0905-12, position under Vacancy Announcement

No. 96B0031B.

Thereafter, appellant requested a hearing before an Administrative Judge

(AJ). During the pre-hearing conference appellant contended that the

correct issue included a pattern of nonselections for several vacancy

announcements. The complaint was remanded and appellant was given

the opportunity to clarify his allegations. The agency described the

additional allegations as follows:

2. On July 14, 1994, appellant was not selected for promotion to

Attorney (Estate & Gift), GS-0905-13, position under Vacancy Announcement

No. 94E0038B; and,

On May 14, 1995, appellant was not selected for promotion to Attorney

(Estate Tax), GS-0905-13 position under Vacancy Announcement

No. 95E0197B.

The agency issued a FAD dismissing allegations 2 and 3 for untimely

counselor contact, pursuant to 29 C.F.R. �1614.107(b). The FAD also

indicated that the dismissed allegations were not part of a continuing

violation.

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 (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Ball v. USPS, EEOC Request

No. 05880247 (July 6, 1988). Thus, the time limitation is not triggered

until a complainant reasonably suspects discrimination, but before all

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

EEOC Regulations provide that the agency or the Commission shall extend

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

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

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

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

or the Commission.

In the instant case, the agency dismissed allegations 2 and 3 for untimely

counselor contact and failure to establish a continuing violation.

The continuing violation doctrine can be invoked to suspend the normal

time limit for contacting an EEO counselor. See Rowan v. Department

of Transportation, EEOC Request No. 05940661 (February 24, 1995).

A continuing violation will not be found, however, where the acts

complained of are by themselves capable of triggering a reasonable

suspicion of discrimination. See Blighton v. Department of the Treasury,

EEOC Request No. 05940483 (November 29, 1994). Here, allegations 2

and 3 involve two distinct nonselections that occurred in 1994 and 1995.

The agency also indicates that different selecting officials were involved

in each instance. Therefore, the Commission finds that appellant should

have reasonably suspected discrimination more than forty-five days before

his October 10, 1996 contact, regarding events that occurred one and

two years earlier. The agency's decision to dismiss allegations 2 and

3 was proper.

Finally, notwithstanding our decision to affirm the agency's dismissal of

allegations 2 and 3, it is well settled that past alleged discriminatory

events, which were not the subject of timely complaints, may be used

as background evidence for a timely complaint, although they otherwise

have no legal consequences under Title VII. See United Airlines,

Inc. v. Evans, 431 U.S. 553, 558 (1977). Therefore, appellant may

include information regarding allegations 2 and 3 as background for

accepted allegation 1.

Accordingly, the agency's decision dismissing allegations 2 and 3 is

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

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

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 this

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 (S0993)

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:

11/01/1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations