Eddie L. Wesley, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01993340 (E.E.O.C. Nov. 8, 1999)

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.