01991379
10-14-1999
Gerald R. McDonald, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gerald R. McDonald v. United States Postal Service
01991379
October 14, 1999
Gerald R. McDonald, )
Appellant, )
) Appeal No. 01991379
v. ) Agency No. 1-C-151-0126-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning 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., the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. and �501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. The appeal
is accepted in accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
Appellant filed a formal complaint on September 15, 1998, alleging
discrimination on the bases of race (African-American), age (49 years
old at the time of complaint), and physical disability (light duty due to
back injury) when he was continuously passed over on the seniority list,
denied the opportunity to work overtime and on layoff days, and denied
the opportunity to train for upper level jobs from June 1993 to present.
In its FAD, the agency accepted appellant's allegations since June 19,
1998 to include the dates of August 25-28, 1998 and August 30, 1998.
The agency also dismissed a portion the complaint alleging events from
January 1993 through June 18, 1998. The agency found that appellant
contacted an EEO Counselor on August 3, 1998, therefore, appellant
contacted the counselor in an untimely manner. The agency dismissed
the allegations of discrimination from January 1993 through June 18,
1998 pursuant to 29 C.F.R. �1614.107(b). This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the appellant can establish that
appellant was not aware of the time limit, that appellant did not know
and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence appellant was
prevented by circumstances beyond (his or her) control from contacting
the EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation period
is triggered. See Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)
- the predecessor of 29 C.F.R. �1614.105(a)(1)).
In the case at hand, appellant does not allege that he was not aware
of the time limits. Further, appellant has participated in prior EEO
activity and should be aware of the time limitations. In addition,
appellant contends that he faced continuous discrimination from
January 1993 through to June 18, 1998. 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 not sufficient to allege that
the effects of past discrimination have continued until the present.
In Berry, the court set forth three relevant factors. The first
is whether the acts involved the same type of discrimination. 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). The second
factor is whether the events were recurring or isolated incidents.
The final element is the degree of permanence which should trigger an
employee's awareness of and duty to assert his or her rights or which
should have indicated to the employee that the continued existence of the
adverse consequences of the act is to be expected without being dependent
on a continuing intent to discriminate. Should these factors 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).
We find that appellant fails to establish a continuing
violation. Appellant's allegations of denial of the opportunity to work
overtime and on layoff days, of promotion opportunity, and of training
are discrete acts which should have triggered appellant's awareness
that a discriminatory act may have occurred. Therefore, appellant
should have become aware of his duty to assert his rights. Therefore,
we find that the untimeliness of the complaint shall not be overlooked
and this portion of appellant's complaint is dismissed for failure to
meet an applicable time limit, pursuant to 29 C.F.R. �1614.107(b).
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
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 (S0993)
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:
October 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations