01995620
11-05-1999
Eurene V. Lashley, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Eurene V. Lashley v. Department of the Navy
01995620
November 5,1999
Eurene V. Lashley, )
Appellant, )
)
v. ) Appeal No. 01995620
) Agency No. 9900014001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On July 1, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to 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. In her complaint, appellant alleged that she was
subjected to ongoing and continuous discrimination on the bases of race
(African-American), color (black), age (64), and in reprisal for EEO
activity when:
On January 13, 1999, she received an unfair performance rating of "4,"
which is "exceeds fully successful";
She received unfair performance ratings in her appraisals for 1995,
1996, and 1997;
Her supervisor denied her a computer access training course held on
July 29, 1998, which was afforded to nine of her co-workers;
She received unfair performance ratings in her appraisals for 1992 and
1993; and
She received an unfair performance appraisal rating of "4" for the
performance period ending September 30, 1994.
The agency accepted allegation (1) and dismissed allegations (2)
through (5). Allegations (2) and (3) were dismissed pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b), for failure to initiate contact with
an EEO counselor in a timely manner, and allegations (4) and (5) were
dismissed pursuant to EEOC Regulation 29 C.F.R. �1614.107(a), because they
stated claims that were already decided by or pending before the agency.
With regard to allegations (2) and (3), the agency specifically determined
that because appellant's January 25, 1998 initial EEO counselor contact
occurred more than forty-five days after the dates of the discriminatory
actions claimed, they were untimely. Additionally, the agency concluded
that appellant failed to establish a continuing violation because the
issuance of performance ratings as raised in allegation (2) were separate
and distinct incidents, and the denial of computer training raised in
allegation (3) was not like or related to any timely raised allegation.
The agency also determined that allegation (4) had already been considered
and dismissed, and that allegation (5) was pending before the agency,
as part of appellant's prior complaint dated December 13, 1994, and
signed March 3, 1995.
Allegations (2) and (3)
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 days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five 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 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.
Although appellant asserted the agency's discrimination was ongoing and
continuous, in allegation (2) she identified only three specific acts of
alleged discrimination relating to her performance appraisals of 1995,
1996, and 1997. As appellant's January 25, 1999 initial EEO counselor
contact occurred more than forty-five days after the alleged incidents
of discrimination, it was clearly untimely. The Commission has held,
however, that the time requirements for initiating EEO counseling
could be waived as to certain allegations within a complaint when
the complainant alleged a continuing violation; that is, a series of
related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999); McGivern v. U.S. Postal
Service, EEOC Request No. 05901150 (December 28, 1990).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. Berry v. Board of Supervisors of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).
It is necessary to determine whether the acts are interrelated by a
common nexus or theme. See Vissing v. Nuclear Regulatory Commission, EEOC
Request No. 05890308 (June 13, 1989); Verkennes v. Department of Defense,
EEOC Request No. 05900700 (September 21, 1990); Maldonado v. Department of
the Interior, EEOC Request No. 05900937 (October 31, 1990). Should such
a nexus exist, appellant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
Jackson v. Department of the Air Force, EEOC Request No. 05950780 (June
27, 1997).
In the present complaint, we concur with the agency's determination
for allegation (2) that appellant failed to establish a continuing
violation. Allegation (2) concerns appellant's performance appraisals
for 1995 through 1997. It is well-settled that the issuance of an
annual performance appraisal is an incident that has the degree of
permanence which should trigger an employee's duty to assert her rights.
See Jackson v. U.S. Air Force, EEOC Request No. 05950780 (June 27, 1997).
As a result, appellant was obligated to initiate EEO counseling within
forty-five days of the date she received each of her performance
appraisals. Because the record discloses that she did not seek EEO
counseling until more than forty-five days later in each instance, we
find that the agency properly dismissed allegation (2) for untimely EEO
counselor contact.
With respect to allegation (3), however, we find that appellant has
provided sufficient evidence of timely EEO counselor contact on appeal.
In her complaint, appellant asserted she was "denied and excluded from"
a computer access training course held on July 29, 1998. On appeal,
appellant submits a copy of an email sent by her to her agency EEO
counselor, dated July 29, 1998, directly addressing her exclusion from
training and clearly indicating her intent to file a discrimination claim.
As the agency provided no evidence to rebut appellant's submission, and
appellant's initial EEO counselor contact occurred within forty-five days
of the agency's denial of approval for the July 28, 1998 computer access
training course, we find that the agency's dismissal of allegation (3)
was improper.
Allegations (4) and (5)
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
To be dismissed as the same claim, the prior and present complaint must
have involved identical matters. It has long been established that
"identical" does not mean "similar." The Commission has consistently
held that in order for a complaint to be dismissed as identical, the
elements of the complaint must be identical to the elements of the prior
complaint in time, place, incident and parties. See Jackson v. USPS,
EEOC Appeal No. 01955890 (April 5, 1996).
The agency dismissed allegations (4) and (5) under this provision
on the grounds that these allegations stated the same claims as those
dismissed or pending as part of a previous complaint filed by appellant.
A review of the previous complaint referenced by the agency reveals
that allegations (4) and (5) are identical to allegations raised in
that complaint. We therefore find that the agency's decision to dismiss
allegations (4) and (5) as stating the same claims as those in a previous
complaint was proper and is AFFIRMED.
Accordingly, the agency's decision to dismiss allegations (2), (4)
and (5) is AFFIRMED. The agency's decision to dismiss allegation (3)
is REVERSED for the reasons set forth herein, and allegation (3) is
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
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.
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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:
November 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations