Donald G. Moore, Appellant,v.Lawrence H. Summers Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
05970448 (E.E.O.C. Nov. 8, 1999)

05970448

11-08-1999

Donald G. Moore, Appellant, v. Lawrence H. Summers Secretary, Department of the Treasury, Agency.


Donald G. Moore v. Department of the Treasury

05970448

November 8, 1999

Donald G. Moore, )

Appellant, )

)

v. ) Request No. 05970448

) Appeal No. 01963977

) Agency No. 96-3011

Lawrence H. Summers )

Secretary, )

Department of the Treasury, )

Agency. )

______________________________)

GRANTING OF REQUEST TO REOPEN

On February 7, 1997, Donald G. Moore (hereinafter referred to as

appellant) initiated a request to the Equal Employment Opportunity

Commission (EEOC) to reconsider the decision in Moore v. Department of the

Treasury, EEOC Appeal No. 01963977 (January 22, 1997). 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 misapplication of established policy,

29 C.F.R. �1614.407(c)(2); and the previous decision is of such

exceptional nature as to have substantial precedential implications,

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

The issues in this case are whether the agency properly dismissed a

portion of appellant's complaint because: (1) appellant failed to contact

an EEO Counselor in a timely manner and one allegation was previously

raised in the grievance process; and, (2) the allegations did not

constitute a continuing violation. Appellant is a GS-9 Customs Inspector

at the John F. Kennedy Airport ("JFK Airport."). His allegations concern

five nonselections to the position of Senior Customs Inspector, GS-11,

at the JFK Airport. Four of these nonselections occurred from 1992 to

1994 and one occurred on April 12, 1995.

Appellant is an agency Customs Inspector at the JFK Airport. He first

became employed by the Customs Service in 1971 as a Sky Marshal and on

March 26, 1991 was mandatorily retired due to his age from his position

as a Special Agent. Also on March 26, 1991, appellant became employed

with the agency as a Customs Inspector 1890, GS-9/10 and continued to be

assigned to JFK Airport. Appellant initially contacted an EEO Counselor

regarding the five nonselections on or about June 5, 1995 after he

allegedly became aware, on May 5, 1995, that age discrimination played

a role in the nonselections. This EEO contact followed his last

nonselection, in April 1995, under vacancy announcement NY-R93-021JB.

On July 13, 1995, appellant appealed this nonselection with the Merit

Systems Protection Board (MSPB) claiming that he was denied promotion

because of age discrimination and that this discrimination dated back

to 1991. On August 14, 1995, the MSPB dismissed his appeal for lack of

jurisdiction.

On October 19, 1995, appellant filed the EEO complaint at issue herein. On

March 21, 1996, the agency issued a final agency decision (FAD). The

agency accepted the allegation concerning the last nonselection in

April 1995 but dismissed the prior four nonselections for untimely EEO

contact.

The previous decision affirmed the agency's dismissal of four of the

nonselections for failure to timely contact an EEO Counselor and because

one of the nonselections had already been raised through the grievance

procedure. The previous decision rejected appellant's argument that the

nonselections constituted a continuing violation of discrimination. The

previous decision concluded that each nonselection constituted a

separate and distinct act which was permanent in nature and that there

was evidence of appellant's prior awareness of age discrimination. The

previous decision did not consider appellant's statement in support of

his appeal (the Statement) on the grounds that it was untimely filed.

In his request for reconsideration, appellant contends that the Commission

should have considered his Statement in the previous appeal because he

properly requested a short extension of five days to file the Statement

and he never received any communication from the Commission with respect

to this request. Our review of the record shows that the Commission

received appellant's request for an extension of time but did not rule

on it. We therefore find that the Statement should have been considered

in connection with the previous decision. In the Statement, appellant

argued that he only became aware of the existence of age discrimination

when he learned, on May 5, 1995, of the existence of a discriminatory

seniority system which precluded his opportunities for promotion since

1992. Specifically, appellant stated that on May 5, 1995, he received

his score sheet for Vacancy Announcement NY-R/95-001 at home and learned

that some of the people promoted had less seniority and were considerably

younger than he was. According to appellant, he then became aware that an

alleged discriminatory seniority system and the use of a discriminatory

tie-breaking criteria were making it impossible for him to be selected

to the Customs Inspector position over younger employees.

While EEOC Regulation 29 C.F.R. 1614.105(a)(1) requires that complaints

of discrimination be brought to the attention of an EEO Counselor

within 45 days of the date of the alleged discriminatory action, the

limitations period may be extended when a complainant demonstrates a

continuing violation. A continuing violation is a series of interrelated

discriminatory actions, at least one of which falls within the filing

period, or the maintenance of a discriminatory system or policy before

and during the filing period. Valentino v. United States Postal Service,

674 F.2d 56, 65 (D.C. Cir. 1982).

After careful review, we find that appellant has shown the existence of

an alleged discriminatory system or policy, in place during the relevant

time periods, which he could not have reasonably been aware of prior

to May 5, 1995 when he received all of the information related to the

nonselection and to the alleged discriminatory process. Under this policy,

certain, younger employees were awarded extra seniority credit for prior

part-time and casual, part-time Customs employment while appellant did

not receive seniority credit for his pre-retirement work in the Customs

Service since 1971. According to appellant, this system effectively

discriminated against him based on his age, resulting in his failure

to receive enough seniority credit to be placed on the "best qualified

list" and to ultimately be chosen for promotion. We note, also, that the

agency admitted in its FAD that it was not possible to establish whether

the same selecting official was involved in each nonselection. However,

each nonselection involved exactly the same position, the same airport,

and each selection was apparently processed through the same agency

personnel office. Accordingly, under the particular facts of this

case, we find that appellant has established a continuing violation

of discrimination with regard to the five nonselections and that his

allegations should have been accepted by the agency as timely.

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

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

request meets 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. 01963977 is REVERSED and appellant's

complaint is REMANDED for further processing in accordance with the

ORDER below. There is no further right of administrative appeal from

the decision of the Commission on this 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 allegation 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 (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such 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. 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