01990478
05-16-2000
Gary Smothers, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service) Agency.
Gary Smothers v. Department of Defense
01990478
May 16, 2000
Gary Smothers, )
Complainant, )
)
v. ) Appeal No. 01990478
William S. Cohen, ) Agency No. 96-149
Secretary, )
Department of Defense, )
(Army & Air Force Exchange Service) )
Agency. )
____________________________________)
DECISION
On October 21, 1998, complainant filed a timely appeal with this
Commission from an agency decision received by him on dated September 23,
1998, dismissing his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> In his complaint, complainant alleged that
he was subjected to discrimination on the basis of physical disability
(spinal arthritis) when:
On October 31, 1995, complainant was denied a $25,000 retirement bonus
provided to mobile employees upon involuntary early retirement.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.105(a)(1) for untimely EEO Counselor
contact. Specifically, the agency stated that complainant retired on
October 31, 1995, and was aware of the alleged discriminatory action at
that date, however, he did not contact an EEO Counselor until August 20,
1996, outside the applicable forty-five (45) day limitation period.
On appeal, complainant states that his complaint involves a continuing
violation and therefore he argues that the forty-five (45) day limitation
period should be waived. Complainant states that the agency maintained
a systemic policy of discrimination in that individuals who decline to
make themselves eligible for world wide transfers (nonmobile employees)
were not provided a $25,000 incentive bonus provided to individuals who
elected to make themselves eligible for world wide transfers (mobile
employees) and who had a permanent change of station within a time
certain prior to when they volunteer for early retirement.
The record shows that complainant originally filed a class complaint
on this same issue on December 16, 1997 (EEOC Case No. 310-97-5354X).
In that case, the Administrative Judge (AJ) recommended dismissal of
the complaint on the grounds that the complaint failed to meet all the
requirements for filing a class complaint. The agency affirmed the
AJ's recommendation. This decision was not appealed. The present case,
filed in August 1996, was held in abeyance pending the outcome of the
class complaint and resumed following the agency's dismissal of the
class complaint.
EEOC Regulations provide that the agency or the Commission may extend the
time limits for timely contacting an EEO Counselor when a complainant
demonstrates a continuing violation. In Sabree v. United Brotherhood
of Carpenters and Local Joiners, 921 F.2d 396 (1st Cir. 1990), the
court noted that there are two types of continuing violations: serial
violations and systemic violations. Id. at 400. The court defined a
serial violation as being:"'composed of a number of discriminatory acts
emanating from the same discriminatory animus, each act constituting
a separate wrong actionable under Title VII .... For the violation
to be actionable, at least one act in the series must fall within the
limitations period." Id.
By contrast, "a systemic violation need not involve an identifiable
discrete act of discrimination transpiring within the limitations
period. A systemic violation has its roots in a discriminatory policy
or practice; so long as the policy or practice itself continues into the
limitations period, a challenger may be deemed to have filed a timely
complaint." Id. n.7.
In general, the "systemic" continuing violation theory is strongest when a
specific formal rule or policy is challenged, e.g., a seniority practice
or a mandatory retirement system. B. Schlei and P. Grossman, Employment
Discrimination Law 1050 (2d ed. 1983). If such a discriminatory policy or
rule exists and is maintained into the charge-filing period, then the rule
or policy can be attacked despite the fact that the complainant was not
denied a particular job or benefit within the charge filing period. Id.
Courts, however, have also found less formal and structured practices
to constitute a system of discrimination sufficient to trigger the
continuing violation theory. Id.; see also Reed v. Lockheed Aircraft
Corp., 613 F.2d 757 (9th Cir. 1980).
In the present case, complainant did not provide any evidence to establish
an agency rule or policy, formal or informal, which discriminates against
disabled employees, therefore, the Commission declines to apply the
" systemic" continuing violation theory herein. The Commission finds
that complainant failed to present adequate justification to warrant an
extension of the applicable limitations period.
Accordingly, the agency's decision to dismiss the current complaint for
untimely EEO counselor contact was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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 (Z1199)
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:
May 16, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.