01990757
10-13-1999
Ghulam Ali, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.
Ghulam Ali v. Environmental Protection Agency
01990757
October 13, 1999
Ghulam Ali, )
Appellant, )
) Appeal No. 01990757
v. ) Agency No. 98-0072-HQ
)
Carol M. Browner, )
Administrator, )
Environmental Protection )
Agency, )
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. and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. �621 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 and for failure to
state a claim.
BACKGROUND
Appellant filed a formal complaint on April 22, 1998, alleging
discrimination on the bases of race (Non-White, Pakistani), religion
(Islam), national origin (Pakistani), and age (DOB: June 1, 1946) when:
In December 1990, appellant was hired as an "Economist, GS-5" instead
of a GS-11.
From 1991 to 1995, appellant's first-line supervisor made remarks of a
racist nature directed at appellant.
In 1991, appellant was not rewarded when he found that a company was
performing poorly and the agency was awarded $368,500.00 when the agency
settled the case against the company.
In January 1992, appellant was promoted from GS-5 to GS-7 but did not
receive another promotion from 1992 through May 1995.
During 1993-1994, appellant's first-line supervisor yelled at appellant
for seeking assistance from a secretary and called appellant an "inferior
Pakistani."
In 1994, appellant applied and was not selected for a GS-11 position in
the Office of International Activities.
Prior to September 1997, appellant never received a performance award
even though another employee on the same project received an award.
On August 11, 1994, appellant requested a detail to the Office of
International Activities which appellant's supervisor denied.
In May 1995, appellant was promoted from GS-7 to GS-9 which appellant
felt was lower than what he deserved considering his education and
qualifications.
In December 1995, appellant took leave to use more than 100 hours of
"use it or lose it leave" and during leave, the government furloughed
employees. Appellant's supervisor refused to reinstate his leave during
the furlough.
Prior to 1995, appellant's first-line supervisor told him that if
appellant ever complained about his discriminatory treatment, the
supervisor would "make sure" that appellant would never be promoted.
Appellant alleges that this is the reason he did not file a complaint
until 1998.
Several years ago, appellant was denied training on environmental public
policy.
In March 1997, appellant requested that the agency grant him retroactive
promotion dating back to 1990 and was denied his request.
In April 1997, appellant requested that an acting director grant him
retroactive promotion dating back to 1990. She stated that she had no
authority to do so which appellant found to be discriminatory.
In early 1997, appellant requested to be transferred out of his branch
but his request was denied.
In 1997, appellant applied for the position of Economist, GS-12/13.
In November 1997, management offered appellant the position as a lateral
GS-11 because appellant did not qualify as a GS-12. Appellant accepted
the position but felt that he should have been hired at the GS-12 level.
In its FAD dated October 7, 1998, the agency dismissed allegations
(1)-(15) of appellant's complaint for failure to contact an EEO Counselor
within the forty-five (45) day time period. The agency found that
appellant contacted an EEO Counselor on January 6, 1998. The latest event
occurred in November 1997. Therefore, it found that these allegations
were not raised in a timely fashion and that appellant's assertion of
a continuing violation failed. The agency dismissed allegation (16)
finding that appellant failed to state a claim. Appellant applied for
a position and received that position, therefore, the agency found that
appellant failed to demonstrate a harm and dismissed this allegation
pursuant to 29 C.F.R. �1614.107(a). This appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Contact
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)<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 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)).
Upon review of the file, the Commission finds that appellant contacted an
EEO on January 6, 1998. The date of the most recent event in allegations
(1)-(15) is April 1997.<2> Therefore, we find that appellant was untimely
when he initiated contact with an EEO Counselor.
The Commission has held 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. McGivern v. United States 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 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. Relevant to this
determination is whether an untimely discrete act had 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. The final factor in determining whether a claim for a
continuing violation is stated is prior knowledge. It is important
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); see also Sabree
v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d
396 (1st. Cir. 1990). 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).
Upon review, we find that appellant has failed to establish a continuing
violation.<3> Although appellant is claiming continuing violation
in all the alleged discriminatory acts in his complaint, it does not
survive the continuing violation analysis. Appellant alleges several
incidents including discrete acts such as promotion which should have
led appellant to an awareness of and duty to assert his rights. In his
complaint, appellant states that he was told shortly after he began to
work at the agency that GS-5 was low for someone with a masters degree
which indicates that appellant was suspicious of a discriminatory intent
relating to his pay back in 1990. Appellant acknowledges that he did
not go to the EEO Office because he feared his first-line supervisor.
The record indicates appellant worked under this supervisor from 1990
to 1995 and that this supervisor is now deceased. Appellant failed
to contact the EEO office once he was no longer supervised by that
individual. Appellant also stated in his complaint that he sought to
correct the situation through management. Once he found that management
could not correct the situation, he went to the EEO Office. Therefore,
the Commission finds that appellant failed to establish a continuing
violation and that the agency properly dismissed these allegations
pursuant to 29 C.F.R. �1614.107(b).
Failure to State a Claim
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
In allegation (16), appellant claims that he was hired as a GS-11 rather
than the posted position of Economist, GS-12/13. Appellant alleges
that he was placed at lower posting than he deserved. This is an
allegation of a harm which pertains to a term, condition, or privilege
of employment. It appears that the agency has acted prematurely in
addressing the merits of this allegation without having first conducted
a factual investigation. The agency's stated reason for dismissing this
allegation is that appellant was not qualified for the GS-12 posting.
By this reasoning, the agency goes to the merits of the allegation, and
is irrelevant to the procedural issue of whether appellant has stated
a justiciable claim under the regulations. See Ferrazzoli v. United
States Postal Service, EEOC Request No 05910642 (August 15, 1991).
The Commission has held that to file a justiciable complaint, it is
necessary only that a complainant allege a belief that he or she has
been subjected to adverse action because of his or her protected class.
See Zalucky v. United States Postal Service, EEOC Request No. 05870508
(April 14, 1988). If appellant has stated a claim, the agency must
accept the allegations for processing regardless of what it may think
of the merits. Lee v. United States Postal Service, EEOC Request
No. 05930220 (August 12, 1993). With regard to allegation (16), the
Commission finds that appellant has adequately stated a claim and the
agency improperly dismissed it pursuant to 29 C.F.R. �1614.107(a).
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED in part and REVERSED
and REMANDED in part for further processing in accordance with this
decision and the proper regulations.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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:
October 13, 1999
DATE Carlton M. Hadden, Acting Director
1 EEOC Regulation 29 C.F.R. �1614 became effective on October 1, 1992.
Because allegations (1)-(4) giving rise to this appeal occurred prior to
the effective date of Part 1614, the Part 1613 regulations are applicable
to this portion of the case. EEOC Regulation 29 C.F.R. �1613.214(a)(1)(i)
required that complaints of discrimination be brought to the attention of
the EEO Counselor within thirty (30) calendar days of the alleged
discriminatory event, the effective date of an alleged discriminatory
personnel action, or the date that the aggrieved person knew or
reasonably should have known of the discriminatory event or personnel
action. Upon review of the record, the Commission finds that the alleged
discriminatory acts from 1990 through 1992 are untimely. The record
indicates that appellant was aware that the incidents in allegations (1)-(4)
may have been discriminatory in nature when they occurred. Appellant
contacted an EEO Counselor on January 6, 1998 which is after the expiration
of the applicable time limitation period. Therefore, we find that appellant
was untimely in his contact of an EEO Counselor pursuant to 29 C.F.R.
�1613.214(a)(1)(i).
2 We note that appellant alleges on appeal that he met with the EEO
Office in 1995. Although appellant alleges that he was told that
he had no case by the EEO Office, appellant waited at least two (2)
years before returning to the EEO Office regarding these allegations.
Therefore, we find that he did not exercise due diligence in pursuit of
his EEO complaint.
3 Appellant has alleged on appeal that the agency failed to acknowledge
his claim of equal pay discrimination which would allow him to establish
a continuing violation. See Robinson v. General Services Administration,
EEOC Request No. 05950558 (April 4, 1995). The Equal Pay Act only applies
to discrimination on the basis of sex. See Equal Pay Act of 1963, 29
U.S.C. � 206(d). In the case at hand, appellant alleges other bases
of discrimination, namely, race, national origin, age, and religion.
Therefore, the Commission finds that appellant fails to state a claim
of a violation of the Equal Pay Act and, therefore, cannot establish a
continuing violation claim based on equal pay discrimination.