01986223_r
10-28-1999
Jesse T. Richie, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Jesse T. Richie, )
Appellant, )
)
v. ) Appeal No. 01986223
) Agency No. DON-98-65886-031
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On August 10, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated July 10, 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.
The Commission accepts appellant's appeal in accordance with EEOC Order
No. 960, as amended.
In his complaint, appellant alleged that he was subjected to
discrimination on the basis of race (African-American) when:
On 15 February 1998, appellant was not selected for the Supervisory
Support Specialist, GS-1101-13 position, Merit Promotion #97-0627;
On 12 July 1994, appellant was not selected for Merit Promotion #94-166,
Supervisory Industrial Engineer, GS-0896-13;
On 27 February 1996, appellant was not selected for Merit Promotion
#96-0027, Program Manager, GS-0340-12; and
On 24 February 1997, appellant was not selected for Merit Promotion
#97-0024, Supervisory Master Production Scheduler, GS-1101-13.
The agency accepted allegation 1 for investigation, but
dismissed allegations 2, 3, and 4 pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely EEO contact. Specifically, the agency
noted that appellant did not contact an EEO Counselor until February 19,
1998, which was more than 45 days from the date of the incidents raised in
allegations 2, 3, and 4. Furthermore, the agency found that appellant's
allegations did not qualify under the continuing violation theory.
On appeal, appellant contends that he did not suspect discrimination until
his non-selection for Vacancy No. 97-0627. Appellant further argues that
all of his non-selections are attributed to an intimate, hiring group
of senior staff, known as Code 6.3, who are ultimately responsible for
the exclusion of African-Americans from promotional opportunities.
In response, the agency reiterates that the continuing violation theory
is not applicable here, and notes that the promotions in question did
not involve the same qualification requirements, job title, workstation
locations or selecting officials. The agency further asserts that "[e]ach
selection decision represented a completed act and each rejection letter
triggered appellant's awareness and duty to assert his rights."
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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his 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 Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999); McGivern v. U.S. 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 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).
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).
Here, appellant should have reasonably suspected discrimination long
before his initial contact with an EEO Counselor on February 19, 1998.
Appellant was not selected in 1994, 1996, and 1997. Theses incidents
have the degree of permanence which should have triggered appellant's
duty to assert his rights. Accordingly, appellant failed to establish
a continuing violation or otherwise provide adequate justification to
warrant an extension of the 45-day time limit. The agency's dismissal
of allegations 2, 3, and 4 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 28, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations