05980153
11-04-1999
Charles Lunn, Appellant, v. Laurence H. Summers, Secretary, Department of the Treasury, Agency.
Charles Lunn, )
Appellant, )
)
v. ) Request No. 05980153
) Appeal No. 01971284
Laurence H. Summers, ) Agency No. 96-1275T
Secretary, )
Department of the Treasury, )
Agency. )
)
DENIAL OF REQUEST TO RECONSIDER
On December 3, 1997, the appellant timely initiated a request to the
Equal Employment Opportunity Commission to reconsider the case of Lunn
v. Department of the Treasury, EEOC Appeal No. 01971284 (October 30,
1997). The decision was received at the address of the appellant's
former attorney on November 3, 1997. EEOC regulations provide that the
Commission may, in its discretion, reconsider any previous decision. 29
C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence that 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 misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
The issue presented is whether the previous decision properly affirmed
the dismissal of one allegation in the appellant's complaint on the
grounds that he failed to timely contact an EEO counselor.
The appellant, then a nighttime foreman with the Bureau of Engraving
and Printing, filed an EEO complaint. It had multiple allegations of
disability (physical), age and reprisal discrimination. The agency
accepted one allegation. It dismissed the rest for failure to timely
seek EEO counseling.
The appellant appealed the dismissal of only one allegation, i.e., the
denial of the opportunity to work overtime from February 24, 1995 to the
abolishment of the night shift on July 22, 1996. The previous decision
affirmed the dismissal. It found the incident occurred in February
1995, and the appellant did not seek EEO counseling until March 1, 1996,
beyond the 45 day time limit. It found no continuing violation.
The day and night shifts were each covered by one foreman. Over the
denial period, three individuals served as the day foreman. Overtime
opportunities rotated among subordinate staff. The shifts had equal
overtime, and foremen worked to cover it. But in February 1995, according
to the appellant, he was told by management that all overtime would be
assigned to the day shift.
He stated this policy was not followed for several months, noting it
loosened somewhat in April 1995. The appellant stated that in June 1995,
he was ordered not to work any weekly overtime. He stated that after
returning on July 31, 1995 from an absence, he got little or no overtime,
and none in 1996. The appellant indicated that his subordinates grieved
not being assigned overtime in mid-1995 and prevailed. They then got
overtime on the day shift, according to the appellant, so he would not
get it.
The appellant indicated that none of the day shift foremen had known EEO
activity or disabilities, and two were significantly younger than he.
He also indicated that three of the four day shift subordinates were
significantly younger than his two subordinates.
On request, the appellant, in a brief by his former attorney, argues
that the denial of overtime was a recurring violation occurring everyday
from late 1995 onward. We disagree. As argued by the appellant, the
agency decided to eliminate overtime on the night shift in February 1995,
and almost fully or fully implemented this policy by mid 1995 and fully
implemented it by late 1995. After the decision was fully implemented,
the absence of overtime on the night shift did not constitute daily
recurring incidents, but was the present effect of a past decision. United
Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). The brief argues that
a specific overtime incident happened on March 27, 1996, referring to a
night shift subordinate receiving overtime on the day shift. It notes
this practice started in 1995. This does not constitute a new incident.
The brief argues that the overtime policy was made by two individuals
and continued from February 1995 to July 1996. The record suggests
that at least one successor was involved in continuing the policy.
In any event, the above United Air Lines, Inc., analysis is applicable
to and rebuts the argument that the policy created a continuing violation.
Next, the brief argues that the appellant would not have a reasonable
suspicion of discrimination when the policy first started because it
was initially relaxed. The appellant previously stated that he did
not suspect discrimination until February 1996, when he received his
annual performance evaluation with a rating of "fully successful."
Despite the appellant's contention to the contrary, we find he had a
reasonable suspicion of discrimination more than 45 days prior to seeking
EEO counseling. He does not state or suggest that he was previously
unaware of most or all of the facts he avers evidences discrimination,
i.e., the relative ages, and known EEO activity and disabilities of people
on the day and night shifts, and what he considered irregular practices,
such as assigning night shift subordinates overtime on the day shift,
depriving him of overtime opportunities.
Finally, citing three Commission cases, the appellant argues that having
a reasonable suspicion of discrimination more than 45 days prior to
seeking EEO counseling does not prevent a finding of continuing violation.
We need not address this argument since the appellant did not establish
a continuing violation.
After a review of appellant's request to reconsider, the previous
decision, and the entire record, the Commission finds that his request
fails to meet the criteria of 29 C.F.R. �1614.407(c). It is therefore the
decision of the Commission to deny the appellant's request. The decision
of the Commission in EEOC Appeal No. 01971284 remains the Commission's
final decision in this matter.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil 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. 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.
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:
Nov. 4, 1999
Date
Frances
M.
Hart
Executive Officer
Executive Secretariat