Crystal Woodard, Appellant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionSep 10, 1999
01986078_r (E.E.O.C. Sep. 10, 1999)

01986078_r

09-10-1999

Crystal Woodard, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.


Crystal Woodard, )

Appellant, )

)

v. ) Appeal No. 01986078

) Agency No. 8-11-088

Alexis M. Herman, )

Secretary, )

Department of Labor, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her 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. Appellant's attorney received the final agency

decision on June 4, 1998. The appeal was postmarked July 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.

ISSUES PRESENTED

1. The first issue presented is whether the agency properly dismissed

allegation 2 of appellant's complaint on the grounds that appellant

failed to contact an EEO Counselor in a timely manner.

2. The second issue presented is whether the agency properly dismissed

allegation 3 of appellant's complaint on the grounds of failure to

state a claim.

BACKGROUND

Appellant, a Unemployment Insurance Program Specialist, GS-12, initiated

contact with an EEO Counselor on September 12, 1997. On March 30,

1998, appellant filed a formal EEO complaint wherein she alleged that

she was subjected to discrimination on the bases of her race (black,

African-American) when:

She was not selected for the position of Unemployment Insurance Program

Specialist, GS-0106-13, under Vacancy Announcement No. ETA-97-041,

Division of Performance Review. The position was filled on September

2, 1997.

She was not selected for the position of Unemployment Insurance Program

Specialist, GS-0106-13, under Vacancy Announcement No. ETA-97-032,

Division of Program and Implementation. This position was filled on

July 1, 1997.

Since approximately 1992, she has been denied a GS-0106-13 position as

part of a continuing pattern of discrimination.

In its final decision, the agency accepted allegation 1 for investigation

and dismissed allegation 2 of appellant's complaint on the grounds of

failure to contact an EEO Counselor in a timely manner. The agency

determined that appellant's EEO contact on September 12, 1997, was after

the expiration of the 45-day limitation period. The agency determined

that a continuing violation is not applicable to Vacancy Announcement

ETA 97-032 because a different official from a different division was

involved in this decision as opposed to the selection accepted for

investigation. The agency noted that another Unemployment Insurance

Program Specialist position, GS-0106-13, was posted on April 28, 1997, as

Vacancy Announcement ETA-97-033. According to the agency, appellant did

not apply for the position. Consequently, by using Vacancy Announcement

ETA-97-033, the agency dismissed allegation 3 on the grounds of failure

to state a claim.

On appeal, appellant argues that the agency maintained a discriminatory

promotion system. Appellant claims that she applied for numerous

positions since 1992, but she has not been selected for any of the

positions for which she applied. Appellant also claims that she has been

denied training opportunities. Appellant states that all of the selectees

have been white. According to appellant, the system of training future

selectees was in place before July 1, 1997. Appellant maintains that

the discrimination against her constitutes a continuing violation.

In response, the agency asserts with regard to appellant's claim of a

continuing violation that appellant did not provide sufficient information

to connect the alleged actions. The agency states that a common nexus

does not exist between the nonselections for Vacancy Announcement ETA

97-041 and Vacancy Announcement ETA 97-032 as different officials in

different divisions made the respective selections. Finally, the agency

asserts that appellant failed to provide an explanation for her delay

in contacting an EEO Counselor.

ANALYSIS AND FINDINGS

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).

In determining whether a continuing violation exists, the Commission

has relied on the decision in Berry, wherein the court set forth three

relevant factors:

The first is subject matter. Do the alleged acts involve the same type

of discrimination, tending to connect them in a continuing violation?

The second is frequency. Are the alleged acts recurring (e.g., a

biweekly paycheck) or more in the nature of an isolated work assignment

or employment decision? The third factor, perhaps of most importance,

is degree of permanence. Does the act have the degree of permanence

which should trigger an employee's awareness of and duty to assert

his or her rights, or which should indicate 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?

Berry, 715 F.2d at 981. Incidents that are sufficiently distinct

to trigger the running of the limitations period do not constitute

continuing violations. See, e.g., Miller v. Shawmut Bank, 726

F. Supp. 337, 341 (D. Mass. 1989); Cogen v. Milton Bradley Co./Hasbro

Inc., 449 Empl. Prac. Dec. (CCH) �38,894 (D. Mass. 1989). In Cogen,

the court rejected the plaintiff's attempt to apply the continuing

violation theory to, among other allegations, an assignment issue.

The court stated that "discrete acts of discrimination taking place

at identifiable points in time" are not continuing violations for the

purpose of extending the limitations period. Id. at 58,757; see also

Edinboro v. Department of Health & Human Services, 704 F. Supp. 364,

367 (S.D. N.Y. 1988) (demotion not a continuing violation).

In the present case, appellant alleges that she was discriminated against

when she was not selected for various vacancies for the position of

Unemployment Insurance Program Specialist, GS-0106-13. With regard

to Vacancy Announcement No. ETA-97-032, we note that this position was

filled on July 1, 1997. Appellant did not initiate contact with an EEO

Counselor until September 12, 1997, after the expiration of the 45-day

limitation period. We find that this nonselection does not meet the

criteria of a continuing violation. Nonselections are discrete events

with a degree of permanence that should trigger an appellant's suspicion

of discrimination at the time they occur and hence her duty to contact an

EEO Counselor. Furthermore, there is no evidence that the nonselections

were similar, i.e., involved the same agency officials or were in the

same work location. Accordingly, the agency's decision to dismiss

allegation 2 of appellant's complaint on the grounds of untimely EEO

contact was proper and is AFFIRMED.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(a). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

In allegation 3, appellant alleged that she was subjected to ongoing

discrimination since 1992, since she has repeatedly been denied a

GS-0106-13 position. We find that absent specific identification of

nonselections, this allegation does not state a claim upon which relief

could be granted. Allegations 1 and 2 involve specific nonselections

and, hence state claims upon which relief could be granted if appellant

prevailed; allegation 3, however, does not identify a specific injury.

Consequently, we find that allegation 3 was properly dismissed for

failure to state a claim for the reasons set forth herein.<1>

CONCLUSION

The agency's final decision is AFFIRMED for the reasons set forth herein.

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. 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:

Sept. 10, 1999

DATE Carlton M. Hadden, Acting Director

1 We note that it is well-settled that past alleged discriminatory

events, which were not the subject of a timely complaint, may be

used as background evidence for a timely complaint, although they

otherwise have no legal consequences under Title VII. See United

Airlines v. Evans, 431 U.S. 553, 558 (1977). Consequently,

appellant may use prior nonselections for GS-0106-13 positions,

which she is not specifically pursuing, including allegation 2,

as background evidence in the further processing of allegation 1.