01990732
11-05-1999
James O'Malley, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
James O'Malley v. National Aeronautics and Space Administration
01990732
November 5, 1999
James O'Malley, )
Appellant, )
)
v. ) Appeal No. 01990732
) Agency No. NCN-98-KSC-A017
Daniel S. Goldin, )
Administrator, )
National Aeronautics )
and Space Administration, )
Agency. )
______________________________)
DECISION
On November 2, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated September 30, 1998, pertaining
to his complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq. The Commission accepts appellant's appeal in
accordance with EEOC Order No. 960, as amended.
The record indicates that on September 17, 1997, appellant contacted
the Office of Equal Opportunity Programs regarding a complaint
of discrimination on the bases of age, race and national origin.
Appellant alleged that he had been discriminated against when he had been
denied several promotions, was given less desirable assignments and was
ultimately transferred out of his office. After informal attempts to
resolve his allegations failed, appellant filed a formal EEO complaint
on December 20, 1997. The agency framed appellant's allegations of
discrimination as follows:
1. Because of your age (50), you were discriminated against in the
following manner:
(a) you have been performing duties at the GS-14 grade level for a
period of at least nine months prior to December 20, 1997, without being
promoted;
(b) you have been denied high profile assignments which prevent your
advancement to the GS-14 grade level; and
(c) you were non-selected for promotions in favor of younger persons
with less experience.
2. In retaliation for filing a discrimination complaint, information
concerning your cause of action was disclosed to inappropriate persons,
which you believe, may negatively impact your future employment
prospects.
The agency accepted allegation 1(a) for investigation and requested
additional information from appellant to determine whether to accept
allegations 1(b) and 1(c). The agency dismissed allegation 2 pursuant
to 29 C.F.R. �1614.107(b) and (e). Specifically, the agency noted that
allegation 2 was not like or related to a matter that has been brought to
the attention of a Counselor. Further, the agency noted that allegation
2 involved a proposed action or a future harm that appellant believes
may occur.
Appellant supplied the requested information regarding allegations 1(b)
and 1(c), which the agency ultimately used to redelineate appellant's
complaint. The agency amended allegation 1 as follows:
1. Because of your age (50), you were discriminated against in the
following manner:
(a) you have been performing duties at the GS-14 grade level for a
period of at least nine months prior to December 20, 1997, without being
promoted;
(b) you were denied an assignment to the position of Technical Expert
in August of 1997 to prevent your advancement to the GS-14 grade level;
(c) you were denied selection for a promotion to Technical Lead Mechanical
Engineer, Engineering Development Facilities Division, Mechanical Section,
in November of 1994;
(d) you were non-selected for a lateral transfer to the Technology
Section in March of 1996; and
(e) you were denied selection for a promotion to the position of Technical
Expert in September of 1996.
The agency accepted allegations 1(a) and 1(b) for investigation
and dismissed allegations 1(c), 1(d) and 1(e) pursuant to 29
C.F.R. �1614.107(b). Specifically, the agency found that allegations
1(c), 1(d), and 1(e) occurred more than 45 days prior to appellant's
EEO contact on September 17, 1997. Also, the agency found that the
dismissed allegations did not constitute a continuing violation.
On appeal, appellant contends that these earlier allegations should be
considered under a continuing violation theory. Appellant asserts that
since the actions occurred within the same organizational group and with
the same basic management, a continuing violation is established.
In response, the agency notes that appellant's argument based upon a
continuing violation theory is "flawed." In fact, the agency contends
that each allegation of non-selection was separate and distinct, because
different officials were involved. Also, the agency claims that appellant
failed to identify a common theme between his earlier allegations and
his timely allegations because each incident is unrelated to the other.
Furthermore, the agency states that each alleged incident prompted or
should have prompted appellant to seek counseling.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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 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. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989).
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, 715 F.2d 971, 981
(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). 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). Should such
a nexus 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).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, 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).
As to allegations 1(c), 1(d) and 1(e), the record shows that appellant
did not contact an EEO Counselor until September 17, 1997. Appellant has
not shown that allegations 1(c), 1(d) and 1(e) are related to his other
timely raised allegations to establish a series or pattern of related,
discriminatory acts. It is well-settled that the denial of a promotion
and the issuance of an annual performance appraisal are incidents that
have the degree of permanence which should trigger an employee's duty
to assert his rights. See Anvari v. Department of Health and Human
Services, EEOC Request No. 05930157 (June 17, 1993); Jackson v. U.S. Air
Force, EEOC Request No. 05950780 (June 27, 1997). Allegations 1(c),
1(d) and 1(e) involve discrete incidents which should have triggered
appellant's suspicion of alleged discrimination at the time they occurred.
Furthermore, the discrete nature of these incidents is further evidenced
by the lengthy period of time in between each incident, i.e., almost
two years between the non-selection at issue in 1(c) and 1(d), and six
months between the incidents in 1(d) and 1(e). Since appellant failed
to establish a continuing violation and his EEO contact was beyond the
45-day time limit for allegations 1(c), 1(d) and 1(e), we find that the
agency's dismissal was proper.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegations 1(c), 1(d), and 1(e).
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:
November 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations