01985687
01-19-2000
Gary Smothers, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service) Agency.
Gary Smothers, )
Complainant, )
)
v. ) Appeal No. 01985687
) Agency No. AAFES 98-040
William S. Cohen, )
Secretary, )
Department of Defense, )
(Army & Air Force Exchange Service) )
Agency. )
____________________________________)
DECISION
On July 7, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) issued on June 17, 1998, pertaining
to his 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 Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> The Commission accepts complainant's appeal
in accordance with EEOC No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
present complaint for failure to initiate timely contact with an EEO
Counselor.
BACKGROUND
The record reflects that on August 28, 1997, complainant initiated contact
with an EEO Counselor. During the Counseling period, complainant stated
that on October 31, 1995 he was discriminated against when he did not
receive consideration for the Executive Management Program (EMP).
Counseling failed, and on December 23, 1997, complainant filed a formal
complaint claiming he was the victim of unlawful employment discrimination
based on his physical disability. The formal complaint was comprised
of the matter for which complainant underwent EEO counseling, discussed
above.
By letter dated April 14, 1997, the agency requested additional
information from complainant including an explanation as to why his
initial EEO Contact was untimely. Complainant responded to the request
and claimed that his EEO contact was untimely because he was unaware
he was discriminated against until he was provided with and read the
Americans with Disabilities Act on August 9, 1997.
On June 17, 1998, the agency issued a final decision dismissing the above
complainant for failure to initiate timely contact with an EEO Counselor.
The agency found that the alleged discriminatory event occurred in October
1995, and complainant's initial EEO contact in August 1998, was more
than forty-five days after the matter raised in the claim purportedly
occurred and that complainant's explanation for his untimely EEO contact
was insufficient to extend or waive the limitations period.
On appeal, complainant asserts that the forty-five-day limitations period
is not applicable because it is a systemic policy of discrimination
within the agency not to consider disabled employees for EMP status.
The agency responds to complainant's statement in support of his
appeal by claiming that complainant is well-versed in the EEO process
and furthermore, he previously stated that he was not filing a class
complaint.
ANALYSIS AND FINDINGS
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.
The limitations period may also be extended 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 filed 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.
CONCLUSION
For the foregoing reasons, the Commission hereby AFFIRMS the agency
decision to dismiss the present complaint for failure to initiate timely
contact with an EEO Counselor.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
January 19, 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 Equal Employment Assistant 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.