01A01004
08-18-2000
Hugh Wright , Complainant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Hugh Wright v. Small Business Administration
01A01004
August 18, 2000
.
Hugh Wright ,
Complainant,
v.
Aida Alvarez,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A01004
Agency No. 05-99-029
DECISION
On November 15, 1999, complainant filed an appeal with this Commission
from an agency decision pertaining to his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.<1> The Commission accepts the appeal in accordance with 64
Fed. Reg. 27,644, 37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
The record shows that on March 12, 1999, complainant contacted the
EEO office regarding claims of discrimination based on race, age,
and reprisal. Informal efforts to resolve complainant's concerns,
regarding his work assignments and reassignment to another position,
were unsuccessful. On May 26, 1999, complainant filed a formal complaint.
The agency framed the claims as follows:
1) On October 14, 1997, complainant was assigned duties not related to
his position as Export Development Specialist;
2) In August 1998, complainant was assigned to process Low Documentation
loans in
Hazard, Kentucky. This assignment was unrelated to his position in
International Trade; and
3) On February 23, 1999, complainant was reassigned from his position
as Export Development Specialist to the position of Assistant District
Director of the 8(a) Business Development Program.
On September 30, 1998, the agency issued a final decision dismissing
the complaint. The agency dismissed claims 1 and 2 for untimely
EEO Counselor contact. The agency dismissed claim 3 for failure to
state a claim. Regarding claims 1 and 2, the agency determined that
complainant's EEO Counselor contact was more than forty-five days
after the alleged events, and that the incidents were not part of a
continuing violation. The agency further determined that claims 1 and 2
concerned �discrete, isolated employment acts which should have triggered
[complainant's] awareness.�
On appeal, complainant, through his attorney, argues that claims 1
and 2 are part of a continuing violation. Further, complainant argues
that it was not until he was involuntarily reassigned in February 1999,
that he realized that the earlier assignments of unrelated duties were
part of an ongoing effort to prevent him from remaining in his new job.
Regarding claim 3, complainant argues that the transfer states a claim
because he was moved to another location and given different duties.
In response, the agency argues that complainant's complaint was properly
dismissed for the reasons set forth in its final decision. Moreover,
the agency argues that even if the matter addressed in claim 3 stated
a claim, it should nevertheless be dismissed because it was raised by
complainant in a separate claim of settlement breach.
Claim 3
In claim 3, complainant alleges that he was discriminated against on
February 23, 1999, when he was reassigned from his position as Export
Development Specialist to the position of Assistant District Director
of 8(a) Business Development Program. While the agency dismissed claim
3 for failure to state a claim, we find that it is properly analyzed in
terms of whether it raised the same matter pending before the agency or
the Commission.
The record reflects that on March 5, 1999, approximately one week before
contacting the EEO office in the instant complaint, complainant alleged
that the agency breached a September 25, 1997 settlement agreement,
when he was reassigned from the Export Development Specialist position
in February 1999. Complainant filed an appeal with the Commission
regarding this matter, which is pending before the Commission in Appeal
No. 01994347. Accordingly, the agency's decision to dismiss claim 3
was proper and is AFFIRMED for the reasons set forth herein. See 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter cited
as 29 C.F.R. �1614.107(a)(1)).
Claims 1 and 2
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 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.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain claims 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. United States
Postal Service, EEOC Request No. 05901150 (December 28, 1990).
The alleged events in claims 1 and 2 occurred in October 1997 and
August 1998. Complainant did not contact an EEO Counselor until March
12, 1999, beyond the forty-five day limitation period. On appeal,
complainant contends that the claims are part of a continuing violation.
In the instant case, however, the Commission has affirmed the agency's
dismissal of the only timely claim (claim 3) for the reason set
forth above. Complainant has not otherwise identified any incident
of discrimination which fell within the forty-five days preceding
his initial EEO Counselor contact of March 12, 1999. Specifically,
the alleged matters in claims 1 and 2 occurred respectively in October
1997 and in August 1998. Therefore, complainant has not established
a continuing violation. In addition, we find that complainant has not
presented sufficient reason for waiving the timeliness requirements on
other grounds.
Accordingly, the agency's decision dismissing the complaint was proper
and is hereby 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 18, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this 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.