01984902
09-02-1999
David Walker, Jr., Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
David Walker, Jr. v. Department of the Army
01984902
September 2, 1999
David Walker, Jr., )
Appellant, )
)
v. ) Appeal No. 01984902
) Agency No. ARFO9608G0600
Louis Caldera, )
Secretary, )
Department of the Army, )
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
May 12, 1998. The appeal was postmarked May 28, 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 1 of appellant's complaint on the grounds of failure to state
a claim.
2. The second issue presented is whether the agency properly dismissed
allegation 2 on the grounds that it states the same claim that is pending
before or has been decided by the agency or the Commission.
3. The third issue presented is whether the agency properly dismissed
allegations 3-8 on the grounds of untimely EEO contact.
BACKGROUND
Appellant initiated contact with an EEO Counselor on May 16, 1996.
On August 8, 1996, appellant filed a formal EEO complaint wherein he
alleged that he was discriminated against on the bases of his race
(black), color (black), national origin (African-American), and in
reprisal for his previous EEO activity when:
1. On August 3, 1994, an agency official made a statement that all
people testifying on behalf of a certain agency employee in his hearing
before the Merit Systems Protection Board were putting nails in their
own coffins. Appellant stated that he became aware of this statement
in April 1996.
2. Performance bonuses have not been awarded to property book employees
since August 3, 1994.
3. Several agency officials conspired to help a certain individual
sue appellant. The civil action was filed on October 19, 1994.
4. Two agency officials made false statements against appellant that
were used by the individual suing appellant. The civil action was closed
on August 8, 1996, when the plaintiff's time for appeal expired.
5. An agency official refused to provide appellant with legal assistance
in the matter where he was sued. Appellant requested legal assistance
on November 29, 1994.
6. On July 15, 1998, appellant discovered that his personnel file
included another individual's job description. Appellant states that
this job description was fraudulently inserted into his file to assist
in the civil action.
7. Appellant was removed from the front office and placed in the
warehouse. His inspection duties were given to others. This occurred
prior to November 27, 1995.
8. There has been an ongoing failure to place appellant in a GS-6 Supply
Technician position, as promised by an agency official on or before May 3,
1993.
In its initial final decision, the agency dismissed appellant's complaint
on the grounds of failure to contact an EEO Counselor in a timely manner.
In David Walker, Jr. v. Department of the Army, EEOC Appeal No. 01970196
(August 29, 1997), the Commission vacated the final agency decision and
remanded the complaint for clarification of the incidents at issue and
when the allegations occurred. The Commission found that the agency
failed to define the complaint in its decision or on appeal.
In the final decision currently under review, the agency dismissed
allegation 1 of appellant's complaint on the grounds of failure to state
a claim. The agency determined that appellant failed to establish that
he suffered a personal deprivation with respect to a term, condition,
or privilege of his employment as a result of the agency official's
statement. The agency stated that a remark or comment, unaccompanied by
concrete action, is not a direct and personal deprivation sufficient to
render an individual aggrieved. Allegation 2 was dismissed on the grounds
that it states the same claim as that pending before or has been decided
by the agency or the Commission. According to the agency, the agency's
failure to award performance bonuses to property book employees for the
rating period of August 22, 1993, through April 29, 1994, was raised in
another complaint filed by appellant on October 11, 1994. The agency
stated that it found no discrimination occurred in that complaint
and that the Commission affirmed the finding of no discrimination.
With regard to the rating period which ended in Fiscal Year 1995, the
agency determined that appellant filed an informal EEO complaint on
October 18, 1995, concerning not receiving an award, but that he did not
file a formal complaint on the matter. As for the rating period that
concluded in 1996, the agency determined that appellant received a time
off award for his performance. With respect to the rating period that
concluded in 1997, the agency stated that appellant filed an informal
EEO complaint that was resolved in a negotiated settlement agreement.
Allegations 3-8 were dismissed on the grounds that appellant failed
to contact an EEO Counselor in a timely manner. The agency determined
with regard to allegations 3-5 that the hearing in the civil action was
held on July 21, 1995, and that appellant should have been aware of any
discrimination at that time. The agency stated that appellant did not
contact an EEO Counselor until almost ten months later. With respect
to allegation 6, the agency noted that appellant indicated that he
was aware on July 15, 1995, that his personnel file included another
individual's job description. As for allegation 7, the agency determined
that six months passed between the time of appellant's placement in
the warehouse and the removal of his inspection duties, and his contact
of an EEO Counselor. With regard to allegation 8, the agency stated
that appellant declined the Supply Technician position in 1993, because
the supervisory duties added to the position would have prevented him
from retaining his union standing. The agency reasoned that appellant
should have suspected discrimination before three years passed since
his rejection of the offered promotion. Finally, the agency rejected
appellant's allegation of a continuing violation. The agency determined
that the same officials were not involved in each incidents. Further,
the agency concluded that the incidents were not of a similar nature.
Additionally, the agency reasoned that appellant suspected discrimination
as early as October 1994, when he filed a complaint concerning the
agency not awarding him a performance bonus. The agency acknowledged
that appellant informed the EEO Office in 1994 of the civil action
filed against him. The agency stated at no time did appellant state
that he wished to pursue the EEO process and file an EEO complaint,
nor did appellant state that the civil action was discriminatory.
On appeal, appellant contends that his complaint should be considered a
continuing violation because various combinations of agency officials were
directly involved or assisted in facilitating the alleged incidents.
With regard to allegation 2, appellant argues that the yearly denial
of performance awards from 1994 through 1997 constitutes a continuing
violation involving the same issues and officials. With regard
to allegations 3-8, appellant maintains that he timely contacted an
EEO Counselor. According to appellant, he contacted the EEO Office on
November 3, 1994, and spoke with the EEO Counselor regarding his desire
to file an EEO complaint. Appellant states that he was informed that
time was not a factor since he had initiated contact with the EEO Office
on that date.
In response, the agency asserts that although appellant now claims that he
informed the EEO Counselor in November 1994, that he wanted to file an EEO
complaint against government officials for colluding with the government
contractor who sued him, he did not file such a complaint or mention it
at the time. The agency further argues that cash awards are considered
annually, and should not fall within the continuing violation theory.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (Apr. 21, 1994).
Appellant alleged in allegation 1 that he was discriminated against when
an agency official stated that all people testifying on behalf of an
agency employee at a Merit Systems Protection Board hearing were putting
nails in their own coffins. We find that appellant failed to demonstrate
some personal harm or loss to a term, condition, or privilege of his
employment as a result of the alleged comment. A comment or remark
unaccompanied by any concrete action and/or disciplinary action does
not render an individual aggrieved. See Henry v. United States Postal
Service, EEOC Request No. 05940695 (February 9, 1995). Accordingly,
the agency's decision to dismiss allegation 1 of appellant's complaint
for failure to state a claim was proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident and parties.
See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
The agency dismissed allegation 2 under this provision. Upon review of
the record, we note that the agency failed to insert in the record copies
of the various complaints appellant allegedly filed with regard to not
receiving performance bonuses for the years at issue. Therefore, the
agency failed to adequately support its position that appellant is stating
the same claim in the instant complaint that was pending or decided by
the agency or the Commission. In Ericson v. Department of the Army,
EEOC Request No. 05920623 (January 14, 1993), the Commission stated that
the agency has the burden of providing evidence and/or proof to support
its final decisions. See Gens v. Department of Defense, EEOC Request
No. 05910837 (January 31, 1992). Accordingly, the agency's decision
to dismiss allegation 2 was improper and is REVERSED. Allegation 2 is
hereby REMANDED for further processing pursuant to 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).
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).
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).
We find with regard to allegations 3-8 that these incidents were
not brought to the attention of an EEO Counselor with the intention
of pursuing the EEO process in a timely manner. Although appellant
apparently mentioned the civil action filed against him to the EEO Office
in November 1994, we are not persuaded that appellant indicated to the
EEO Office at that time that he wished to pursue an EEO complaint or that
appellant was given reason to believe that he could delay utilizing the
EEO process for this issue until a later date. The incidents set forth
in allegations 3-7 all occurred several months or more before appellant
initiated contact on May 16, 1996, with an EEO Counselor for the purpose
of utilizing the EEO process. We find that these allegations do not
bear a sufficient nexus to the one allegation that remains at issue, the
failure to award appellant performance bonuses. Therefore, allegations
3-7 do not fit within the continuing violation theory.
As for allegation 8, we find that the failure to place appellant in a GS-6
Supply Technician position is a matter that should have been raised by
appellant when it initially arose and not nearly three years afterwards.
Appellant should have had a reasonable suspicion of discrimination
long before he contacted an EEO Counselor in May 1996. Accordingly,
the agency's dismissal of allegations 3-8 on the grounds of untimely
EEO contact was proper and is AFFIRMED.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation (Allegation 2)
in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded allegation (Allegation 2)
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.
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:
Sept. 2, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations