Eurenev.Lashley, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01995620 (E.E.O.C. Nov. 5, 1999)

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