01983758
09-03-1999
Econyes F. Lowe, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Econyes F. Lowe, )
Appellant, )
) Appeal No. 01983758
v. ) Agency No. NCN-97-LARC-A038
)
Daniel S. Goldin, )
Administrator, )
National Aeronautics and Space )
Administration, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) 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., and the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The FAD
was dated March 13, 1998, and received by appellant on March 16, 1998.
The appeal was postmarked on April 14, 1998. Accordingly, the appeal
is timely (see 29 C.F.R. �1614.402(a)), and is accepted in accordance
with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for untimely EEO Counselor contact.
BACKGROUND
Appellant initially contacted an EEO Counselor on April 10, 1997. She
then filed a formal complaint on August 9, 1997, alleging discrimination
on the bases of race (Black) and age (61) when:
(1) in March 1997, she was denied an opportunity for advancement when
a white female was reassigned in a position with greater promotion
potential than appellant's position;
(2)(a) in March 1997, she was denied a promotion even though her duties
and responsibilities merited promotion to a higher grade level, while
others were promoted;
(2)(b) prior to March 1997, she was denied a promotion even though her
duties and responsibilities merited promotion to a higher grade level.
In its FAD, the agency dismissed allegation (2)(b) for untimely EEO
Counselor contact. This appeal followed.
Appellant detailed allegation (2)(b) in her formal complaint. She
asserted that, since 1986, she had been either denied promotions or had
not been promoted as readily as her white co-workers. She highlighted
the following incidents, among others:
(1) on November 22, 1987, appellant, then a GS-6 personnel assistant,
became the head of the technical support section. The promotion potential
of the position did not, however, increase to GS-8 as it had when other
white females held the position;
(2) on February 17, 1989, appellant, still a GS-6, was assigned to the
NASA Personnel/Payroll System (NPPS). When she asked the branch manager
to reclassify her position to GS-9, he changed the subject;
(3) on July 1, 1990, appellant was promoted to GS-7 after waiting three
years for a promotion. According to appellant, five white personnel
assistants were promoted. All waited less than three years for a
promotion;
(4) on February 9, 1992, due to added responsibilities, appellant asked
the lead personnel assistant and the branch manager to reclassify her
position to a higher grade. Her position was not reclassified;
(5) on September 21, 1993, appellant, still a GS-7, was told by one
of the personnel specialists in her branch that her "position could
be reclassified to the professional series for personnel management
specialist based on the responsibilities [she had], but [that] the
assistant branch head [did] not want to reclassify her position";
(6) in January, 1996, appellant was given the duties of the primary
NPPS manager because the manager retired. According to appellant,
"a position description was not written, nor did [her] grade potential
change to reflect [her] increased responsibilities";
(7) on April 22, 1996, appellant presented a copy of her position
description to the assistant division chief in an effort to get her
position reclassified. The assistant chief told her that she would
review it.
Appellant goes on in her list to recount events that happened beginning
in March, 1997. These events reflect the allegations that were accepted
by the agency as timely.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or within 45 days of the
effective date of the personnel action. The Commission has held that
the time requirement for contacting an EEO Counselor can be waived as
to certain allegations within a complaint when the complainant alleges
a continuing violation, that is, a series of related discriminatory
acts, one of which falls within the time period for contacting an EEO
Counselor. See McGivern v. USPS, EEOC Request No. 05901150 (December
28, 1990). A continuing violation will not be found, however, where
the acts complained of are themselves capable of triggering a reasonable
suspicion of discrimination. Blighton v. Department of Treasury, EEOC
Request No. 05940483 (November 29, 1994).
It is our opinion that the events which appellant recounts in her
formal complaint were themselves capable of triggering a reasonable
suspicion of discrimination. Appellant suspected discrimination as
early as 1987. Often, she was not given an explanation for her lack of
promotion. She did not, however, contact an EEO Counselor until 1997.
The events referred to in allegation (2)(b), therefore, are not part of
a continuing violation. We agree then with the agency that allegation
(2)(b) is untimely.
This finding does not, however, relieve the agency of its responsibility
to thoroughly investigate all of the circumstances that may be relevant
to appellant's current allegations involving her inability to attain
promotion and advancement. See EEOC Management Directive 110 5-4 (October
22, 1992). This means that allegation (2)(b) must still be investigated as
background evidence to the extent that it is probative of the allegations
accepted for investigation. See Silva v. United States Postal Service,
EEOC Request No. 05960115 (June 20, 1996).
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
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:
__09-03-99____ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations