01993340
11-08-1999
Eddie L. Wesley, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Eddie L. Wesley, )
Appellant, )
)
v. ) Appeal No. 01993340
) Agency No. 97-0079
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On March 19, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) on March 2, 1999 pertaining to a
complaint of unlawful employment discrimination in pursuant to Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The Commission accepts appellant's appeal in accordance with EEOC
No. 960.001.
The record reflects that on May 14, 1996 appellant initiated contact with
an EEO Counselor. During the counseling period, appellant alleged that
he was not being selected for promotions, the last of many which occurred
on May 3, 1996 and that he was receiving low performance appraisals.
On or about June 19, 1996, appellant filed a formal complaint, alleging
that he was the victim of unlawful employment discrimination on the
basis of age (51), race (black) and reprisal (prior EEO activity).
Appellant's complaint was comprised of the matter for which he underwent
EEO counseling, discussed above.
Thereafter, appellant received an acceptance letter from the agency and
an investigation was commenced as per the stated allegations. However,
throughout the investigation and evidenced in his
affidavit, appellant states that he was not concerned with the non
selection on May 3, 1996, in fact, he did not apply for that position.
Rather, appellant was interested in resolving prior non-selections.
On February 26, 1998, Administrative Judge Lorraine Anaya-Colao, conducted
a pre-trial settlement in which appellant again expressed that he was
not interested in the non selection that was investigated but rather,
prior non selections. Again, appellant expressed this concern during
another conference before Administrative Judge Lorraine Anaya-Colao on
April 21, 1998. Thereafter, administrative Judge Anaya-Colao remanded
the case to the agency to conduct a supplemental investigation as to
the prior non selections.
The agency, on September 30, 1998, issued a letter to appellant requesting
additional information concerning the prior non selections. Appellant,
on October 15, 1998, provided the agency with the vacancy number,
position and certification date for ten positions he was not selected for
(hereinafter referenced as non selections: 97-01-22, 96-01-22, 96-39,
95-02, 95-01-22-1, 95-02, 95-01-18, 95-01-27, 94-01-16-1, 94-01-19).
On February 19, 1999 the agency issued a final decision dismissing the
following allegations of non selections 97-01-22, 95-02, 95-01-22-1,
95-02, 95-01-18, 95-01-27, 94-01-16-1 and 94-01-19 for failure to
initiate timely contact with an EEO Counselor. The agency found that
the above alleged discriminatory events occurred at least eleven months
prior to appellant's initial EEO contact. Therefore more than forty-five
days elapsed between when the events purportedly occurred and initial
contact with the EEO Counselor.<1> The agency, in their decision, did
accept non selections 96-01-22 and 96-39 for investigation. It is from
this decision that
appellant appeals.
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 forty-five (45) days of the effective date
of the action. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Howard
v. Department of the Navy, EEOC Request No.
05970852 (February 11, 1999). Thus, the time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified
of the time limits and was not otherwise aware of them, that she did
not know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence she
was prevented by circumstances beyond her control from contacting the
Counselor within the time limits, or for other
reasons considered sufficient by the agency or the Commission.
Upon review of appellant's formal complaint and supplemental information,
it is clear that appellant viewed the denial of the non selections as a
continuing violation. 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 or discriminatory acts, or the maintenance
of a discriminatory system or policy before or during the filing period.
See McGiven v. USPS, EEOC Request No. 05901150 (December 28, 1990).
If one or more of the acts falls within the forty-five day period for
contacting an EEO Counselor, the complaint is timely with regard to
all that constitute a continuing violation. See, Valentino v. USPS,
674 F.2d 56, 65 (D.C. Cir. 1982); Verkennes v.
Department of Defense, EEOC Request No. 05900700 (September 21, 1990).
A determination of whether a series of discrete acts constitute 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). It is necessary to demonstrate whether the
acts are related by a common nexus or theme. See Milton v. Weinberger,
645 F.2d 1070 (D.C. Cir. 1981).
In the case at bar, appellant's allegations of non selections involve
a number of potentially interrelated incidents of discrimination
orchestrated by agency officials. However, in applying the continuing
violation theory, one consideration is whether a complainant had knowledge
or suspicion of discrimination and the effect of this knowledge. See,
Sabree v. United Brotherhood of Carpenters & Joiners Local No. 33, 921
F.2d 396 (1st Cir. 1990). The Commission described Sabree as holding
that a 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 experienced a series of
acts and is thereby able to perceive the overall discriminatory pattern.
Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709
(Jan. 7,1993)
Here, we find that the non selections from April 1994 thru March 1995
were acts that should have prompted appellant to have a reasonable
suspicion of discrimination at the time that they occurred. We note,
for example, that within the record, there is reference to a prior
complaint filed in 1993 which appellant is claiming non selection based
on race. And it is during this case and its appeal to this office that
appellant is claiming discrimination based on race, age and reprisal.
Clearly, in the very least, since the non selections occurred during the
processing of his prior case, appellant should have had a suspicion of
discrimination. Specifically, in the form of reprisal, which is a basis
in appellant's complaint. Furthermore, since on appeal, appellant offers
no mitigating circumstance for not timely contacting an EEO Counselor
pertaining to the above allegations,
appellant has clearly failed to present adequate justification pursuant
to 29 C.R.F. �1614.105 (a) (2), for extending the limitation period
beyond forty-five days. Accordingly, the agency's decision to dismiss
non selections 95-02, 95-01-22-1, 95-02, 95-01-18, 95-01-27, 94-01-16-1
and 94-01-19 for failure to initiate contact with an EEO Counselor in
a timely fashion was proper and is AFFIRMED.
Finally, having reviewed appellant's complaint, the Commission determines
that one allegation raised therein was not addressed by the agency in its
final decision. Specifically, appellant alleged that on May 17, 1996 he
received a low performance appraisal because of his race, age and prior
EEO activity. The agency neither explicitly dismissed this allegation
nor informed appellant of his appeal rights to the Commission regarding
this allegation. Finding the agency's omission to be a dismissal of the
allegation, the Commission hereby REVERSES the dismissal and REMANDS the
allegation for further processing. The Commission therefore determines
that the agency's decision to dismiss this allegation was improper.
Accordingly, the agency's decision to dismiss appellant's allegation
pertaining to his performance appraisal was improper and is REVERSED.
Appellant's complaint is REMANDED to the agency for further processing
in accordance with this decision and applicable regulations.
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 allegations 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.
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. 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
1The agency has dismissed non selection 97-01-22 on the grounds
of untimeliness and that the matter was not discussed with an
EEO Counselor. It is the Commissions decision not to adjudicate
on this issue because it should have been properly raised in a
subsequent complaint.