01984695
10-15-1999
Columbus L. Johnson, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Columbus L. Johnson v. Department of Justice
01984695
October 15, 1999
Columbus L. Johnson, )
Appellant, )
)
v. ) Appeal No. 01984695
) Agency No. F-97-4918
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was issued on March
27, 1998. The appeal was submitted by facsimile transmission on June
4 1998. 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.<1>
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed allegations
1-3 of appellant's complaint on the grounds that appellant failed to
contact an EEO Counselor in a timely manner, and allegation 4 on the
grounds that it was not brought to the attention of an EEO Counselor and
is not like or related to a matter that was brought to the attention of
an EEO Counselor.
BACKGROUND
Appellant initiated contact with an EEO Counselor on January 23, 1997.
On January 24, 1997, appellant filed a formal EEO complaint wherein he
alleged that he had been subjected to discrimination on the bases of
his race (black) and in reprisal for his previous EEO activity when:
1. During an office move in October 1995, he was subjected to a hostile
work environment by a legal attache in Caracas, Venezuela.
2. By memorandum dated February 12, 1996, the legal attache requested
that appellant not be sent to Caracas in the future, and he wrote a
paper attacking appellant's performance, which was "in stark contrast
to what was accomplished" during appellant's trip to Caracas in late
January/early February 1996.
3. As evidenced in a memorandum dated April 17, 1996, the management of
the Field Information Support Section did not aggressively respond to
appellant's complaints of harassment and of being placed in a hostile
work environment in Caracas.
4. In his most recent performance appraisal, appellant received a rating
of "Superior" instead of "Exceptional" due to the problems he experienced
in Caracas and Mexico City.
In its final decision, the agency dismissed allegations 1-3 of appellant's
complaint on the grounds that appellant failed to raise these allegations
with an EEO Counselor in a timely manner. The agency determined that
subsequent to appellant's filing of a prior EEO complaint on September
18, 1996, appellant contacted the EEO Office and stated that he expected
allegations of discrimination against the legal attache in Caracas to be
accepted as part of that complaint. The agency stated that appellant had
not previously raised allegations of discrimination against the legal
attache in Caracas. According to the agency, appellant was informed
by the EEO Office that he must first contact an EEO Counselor if he
wished to pursue these allegations. The agency stated that appellant
contacted an EEO Counselor on January 23, 1997, and that he did not
raise the issues of discrimination that allegedly occurred in October
1995, February 1996, and April 1996, until after he filed his first EEO
complaint on September 18, 1996. The agency determined that appellant
did not raise allegations 1-3 with an EEO Counselor within the 45-day
limitation period. The agency further determined that appellant failed
to establish a continuing violation as no allegations were raised in
a timely manner. With regard to allegation 4, the agency noted that
appellant did not raise this matter with an EEO Counselor prior to the
filing of the formal complaint. The agency dismissed allegation 4 on
the grounds that this matter was not brought to the attention of an EEO
Counselor and is not like or related to a matter that was brought to the
attention of an EEO Counselor. Thereafter, appellant filed the instant
appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(b) provides in relevant part that
the agency shall dismiss a complaint or a portion of a complaint that
raises a matter that has not been brought to the attention of an EEO
Counselor and is not like or related to a matter that has been brought
to the attention of an EEO Counselor.
The fourth allegation of appellant's complaint involves appellant
receiving a rating of "Superior" instead of "Exceptional" on his most
recent performance evaluation due to problems he experienced in Caracas
and Mexico City. We note that the second allegation of the complaint
pertains to appellant's performance during his trip to Caracas in late
January/early February 1996 being criticized by the legal attache
in Caracas. We find that the performance evaluation rating covered
the period including late January/early February and that appellant's
performance in Caracas apparently was considered in assigning the
rating of "Superior". Therefore, we find that allegation 4 was related
to allegation 2, and that allegation 4 should not have been dismissed
on the aforementioned grounds. Accordingly, the agency's decision to
dismiss allegation 4 was improper and is REVERSED. Allegation 4 is hereby
REMANDED for further processing in accordance with the Order below.
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
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 McGovern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989).
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, 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 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). 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 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 396 (1st Cir. 1990) (plaintiff who believed he had been subjected
to discrimination had an obligation to file promptly with the EEOC 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).
In appellant's formal complaint, appellant stated that allegation 1
occurred in October 1995, allegation 2 occurred on February 12, 1996,
and allegation 3 took place on April 17, 1996. It is apparent that
appellant did not raise these issues in the EEO process until after he
filed his previous complaint on September 18, 1996. Thus, appellant did
not bring these allegations to the attention of an EEO Counselor within
45 days of their occurrence. Furthermore, we find that the incidents
raised in allegations 1-3 were discrete events which should have triggered
appellant's duty to contact a counselor at the time they occurred, i.e.,
appellant has not established that he lacked a reasonable suspicion of
discrimination more than 45 days before he raised this issue with an EEO
Counselor. Therefore, we find that the continuing violation theory is
not applicable to allegations 1-3. Accordingly, the agency's dismissal
of allegation 1-3 on the grounds that appellant failed to raise these
allegations with the EEO Counselor in a timely manner was proper and is
AFFIRMED.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation (allegation 4)
in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded allegation (allegation 4)
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 (601 days of receipt
of appellant's request.
A copy of the agency's letter of acknowledgement 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 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 (T0993)
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. 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. If you file a request to reconsider and also file a
civil action, 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:
October 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The record does not establish when appellant received the final agency
decision. Absent evidence to the contrary, we find that the instant
appeal was timely filed.