01990320
11-08-1999
Eulogio H. Gomez, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, ______________________________)
Eulogio H. Gomez, )
Appellant, )
)
v. ) Appeal No. 01990320
) Agency No. KHOF96105
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
)
______________________________)
DECISION
On October 13, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by or on September 16,
1998, pertaining to a complaint of unlawful employment discrimination,
filed pursuant to 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 (ADEA), as amended, 29 U.S.C. �621 et seq. The Commission accepts
appellant's appeal in accordance with EEOC No. 960, as amended.
The record reflects, that on November 28, 1995, appellant initiated
contact with an EEO Counselor. During the counseling period, appellant
alleged that he was subjected to a series of non selections identified
below:
(a). non selection on November 3, 1991
(b). non selection on June 22, 1993,
(c). non selection on November 1993,
(d). non selection on April 21, 1995,
(E). Non selection on October 31, 1995
On March 8, 1996, appellant filed a formal complaint, alleging that he
was the victim of unlawful employment discrimination on the bases of
sex, age, national origin and reprisal. Appellant alleges that since
1991 he has been non selected for positions for which he is qualified
because of his age, national origin and prior EEO activity.
On August 27, 1998, the agency issued a final decision. Therein, the
agency found that appellant's complaint was comprised of the above five
(5) allegations. The agency dismissed allegations
(a),(b),(c) and (d) for failure to initiate timely contact with an
EEO Counselor. However, the agency did accept allegation (e) for
investigation. It is from this decision that appellant appeals.
The record in this case contains an EEO Counselors report. Therein,
appellant claims that he has been subjected to continuous non selection
for budget analyst positions since 1991 through 1995.
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 his statement in
support of this appeal, it is clear that appellant viewed 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 allegation regarding non selection from
1993-1995 involves a number of potentially interrelated incidents of
discrimination allegedly 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.
Dept. of Veterans Affairs, EEOC Request No. 05920709 (Jan. 7,1993)
Here, we find that the alleged discriminatory actions from 1991 thru
April 21, 1995 were acts that prompted appellant to have a reasonable
suspicion of discrimination at the time that they occurred. We note,
for example, that within appellant's statement in support of his appeal
he states �To state a claim(s) on each and every time this supervisor non
selected me for a promotion to the next higher grade (GS12) would create
havoc and tons of paper work on an already over loaded base EEO Office�.
Clearly, in the very least, appellant had suspicion of discrimination
and chose not to
engage the EEO process so as to prevent additional paper work for that
office. Therefore, since the above is appellant's sole assertion for
not timely contacting an EEO Counselor, appellant has clearly failed to
present adequate justification pursuant to 29 C.F.R.� 1614.105 (a)(2),
for extending the limitation period beyond forty-five days. Accordingly,
the agency's decision to dismiss the incidents prior to October 31,
1995, for failure to initiate contact with an EEO Counselor in a timely
fashion was proper and is AFFIRMED.<1>
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
1Since we are affirming the agency's dismissal of allegations
(a),(b),(c),and (d) on the grounds of timeliness, pursuant to 29
C.F.R. �1614.107(b), we will not address the agency's alternative
ground for dismissal of allegation (c) for failure to state a
claim pursuant to 29 C.F.R. �1614.107(a).