Catherine Coley, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
05990987 (E.E.O.C. Nov. 8, 1999)

05990987

11-08-1999

Catherine Coley, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Catherine Coley v. Social Security Administration

05990987

November 8, 1999

Catherine Coley, )

Appellant, )

) Request No. 05990987

v. ) Appeal No. 01983879

) Agency No. 980172

Kenneth S. Apfel, )

Commissioner, )

Social Security )

Administration, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

On August 4, 1999, Catherine Coley (appellant) timely initiated

a request to the Equal Employment Opportunity Commission (the

Commission) to reconsider the decision in Catherine Coley v. Social

Security Administration, EEOC Appeal No. 01983879 (June 29, 1999).

EEOC regulations provide that the Commissioners may, in their discretion,

reconsider any previous Commission decision. 29 C.F.R. �1614.407(a).

The party requesting reconsideration must submit written argument

or evidence which tends to establish one or more of the following

three criteria: new and material evidence is available that was

not readily available when the previous decision was issued, 29

C.F.R. �1614.407(c)(1); the previous decision involved an erroneous

interpretation of law, regulation, or material fact, or a misapplication

of established policy, 29 C.F.R. �1614.407(c)(2); or the decision is of

such exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3). Appellant's request is denied.

Appellant filed an EEO complaint on December 8, 1997, containing fourteen

allegations of discrimination. The agency accepted allegations (1)-(9)

for investigation. The agency dismissed allegations (10)-(13) as untimely

when it concluded that appellant contacted an EEO Counselor on July

30, 1997, after the expiration of the applicable time limitation.<1>

Allegation (14) was also dismissed for failure to state a claim of

harassment. The previous decision affirmed the agency's dismissal of

allegations (10)-(13), finding that appellant failed to establish a

continuing violation and that appellant reasonably should have suspected

discrimination sooner but did not preserve her EEO rights. The previous

decision also reversed the agency's dismissal of allegation (14) and

remanded it for further processing by the agency.

In her request for reconsideration, appellant fails to include new

evidence. Appellant contends that she did not become aware of the bases

of color and reprisal regarding allegations (10) and (13) until she

consulted her representative. Appellant further alleges that allegations

(10)-(13) constitute a continuing violation.

Appellant raises issues pertaining to EEOC Regulation 29

C.F.R. �1614.107(b) which states that the agency shall dismiss a complaint

or a portion of a complaint that fails to comply with the applicable

time limits contained in �1614.105, �1614.106 and �1614.204(c), unless

the agency extends the time limits in accordance with �1614.604(c).

The Commission has adopted a "reasonable suspicion" standard, as opposed

to a "supportive facts" standard, to determine when the limitation period

is triggered. See Ball v. United States Postal Service, EEOC Request

No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)

- the predecessor of 29 C.F.R. �1614.105(a)(1)).

In the case at hand, appellant first argues that she was unaware that

she could use the bases of color and reprisal for a discrimination

complaint until she sought out representation and not at the time of

the incidents in allegations (10) and (13). The Commission finds that

appellant had notice of the bases of reprisal and color due to her prior

EEO activity.<2> Therefore, we find that the time limitation should

not be extended for this reason.

Appellant also argues that allegations (10)-(13) constitute a continuing

violation, and that the time limitation period should be waived.

The Commission finds that the previous decision correctly found that

appellant failed to establish a continuing violation in this case.

The Commission has held that the time requirement for contacting an EEO

Counselor can be waived as to certain allegations within a complaint

when the complainant alleges a continuing violation, that is, a series

of related discriminatory acts, one of which falls within the applicable

time period. See McGivern v. United States Postal Service, EEOC Request

No. 0591150 (December 28, 1990). In order to establish a continuing

violation, a complainant must show that the alleged discriminatory

acts are sufficiently interrelated, and not merely isolated events.

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 not sufficient

to allege that the effects of past discrimination have continued until

the present. In Berry, the court set forth three relevant factors.

The first is whether the acts involved the same type of discrimination.

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

common nexus or theme. See Vissing v. Nuclear Regulatory Commission, EEOC

Request No. 05890308 (June 13, 1989); Verkennes v. Department of Defense,

EEOC Request No. 05900700 (September 21, 1990); Maldonado v. Department of

the Interior, EEOC Request No. 05900937 (October 31, 1990). The second

factor is whether the events were recurring or isolated incidents.

The final element is the degree of permanence which should trigger an

employee's awareness of and duty to assert his or her rights or which

should have indicated to the employee that the continued existence of the

adverse consequences of the act is to be expected without being dependent

on a continuing intent to discriminate. Should these factors 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).

Furthermore, it is important, in determining whether a claim for a

continuing violation is stated, to consider whether an appellant had prior

knowledge or suspicion of discrimination and the effect of this knowledge.

See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33,

921 F.2d 369 (1st Cir. 1990) (plaintiff who believed that he had been

subjected to discrimination had an obligation to file promptly with

the Commission or lose his claim, as distinguished from the situation

where a plaintiff is unable to appreciate that he is being discriminated

against until he has lived through a series of acts and is thereby able

to perceive the overall discriminatory pattern).

Upon review of the record, the Commission finds allegations (10)-(13)

are discrete events which should have triggered appellant's awareness of

and duty to assert her rights. Further, we find that appellant suspected

that she had been subjected to discrimination but failed to promptly

file with the Commission.<3> Accordingly, we find that appellant failed

to establish a continuing violation and was untimely when she contacted

the EEO Counselor in relation to allegations (10)-(13).

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that appellant's

request does not meet the criteria of 29 C.F.R. �1614.407(c), and it is

the decision of the Commission to deny appellant's request. The decision

of the Commission in Appeal No. 01983879 remains the Commission's final

decision. There is no further right of administrative appeal from a

decision of the Commission on a request for reconsideration.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations 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.

RIGHT TO FILE A CIVIL ACTION (Q0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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:

November 8, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 In allegation (10), appellant claims that she was discriminated on the

bases of age and reprisal when on April 3, 1996 and September 1, 1996

appellant was not selected for various vacancies. In allegation (13),

appellant asserts that the agency discriminated against her on the bases

of color and reprisal in November 1996, when it reassigned her to a

different module. In allegations (11) and (12), appellant alleges that

she was discriminated against solely on the basis of reprisal when (11)

from December 1994 through November 1996, she did not receive training

which she was promised and (12) on March 4, 1997, the agency denied her

request for reassignment.

2 The Notice of Right to File a Formal Complaint of Discrimination form

lists the different bases of discrimination, including color and reprisal

for having participated in the statutory EEO process. Appellant has

filed prior EEO complaints in 1991, 1994, and September 1995 and she

received this form in relation to those complaints.

3 Appellant argues that she was not aware of the discriminatory nature

of the events cited in allegations (10)-(13) until she was advised by

her representative. In her pre-complaint counseling, appellant stated

that she felt that she was discriminated against because her supervisors

were aware of her prior EEO activity. This, in conjunction with the

events cited in appellant's allegations (10)-(13), would have given

appellant the requisite reasonable suspicion that the incidents may have

been discriminatory. Although appellant argues that her discussion with

her representative was the triggering event which made her realize the

alleged discriminatory nature of the events, we do not find this argument

compelling.