01991674
02-24-2000
Langston D. Upshur, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Langston D. Upshur, )
Complainant, )
)
)
v. ) Appeal No. 01991674
) Agency No. 98-3285
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On December 22, 1998, complainant filed a timely appeal of a November 20,
1998 final agency decision, which was received by him on November 23,
1998, dismissing his complaint due to untimely EEO Counselor contact
and/or as moot.<1>
In its final decision, the agency identified the claims of complainant's
September 18, 1998 complaint as whether complainant was discriminated
against based on race (Black) concerning his performance ratings
and awards for 1995, 1996, 1997, and 1998. The agency noted that
complainant indicated that he did not become aware of a pattern of
discrimination until June 4, 1998, when he learned that his white
coworker, whose performance was �well below� his own, received the same
rating in �Inventory Management� as he did. The agency also noted that
complainant indicated that in 1994, he was pleased with his �acceptable�
rating; in 1995, the Associate Chief (AC) changed his rating to �4"; in
1996, he believed that the rating he received was due to a change in the
evaluation format; and in 1997, he did not pursue the issue of his rating
because he wanted to be �considerate� of the AC's assignment and �knew
that he was very busy.� Based on the foregoing, the agency determined
that complainant's EEO Counselor contact in July 1998 with regard to
the 1995, 1996, and 1997 performance ratings and awards was untimely.
The agency also determined that complainant failed to establish a
continuing violation since the alleged claims were sufficiently discrete
and should have caused complainant to contact an EEO Counselor at the time
of the incidents. The agency further noted that although complainant
claimed that he was unable to work due to his hospitalization in November
1993, he failed to show that he was so incapacitated that he could not
timely contact an EEO Counselor.
In its final decision, the agency also dismissed the claim with regard
to the 1998 performance rating and award as moot since the rating
was, subsequently, raised in June 1998, and complainant, as a result,
received a Manager's Award in August 1998. The agency also indicated
since complainant was, subsequently, reassigned to a different supervisor,
the agency eradicated the effects of the alleged discrimination and there
was no reasonable expectation that the alleged violation would recur.
In addition, the agency noted that although it appeared that complainant
was raising a nonselection issue, he failed to raise the matter during
EEO counseling, and advised him to contact an EEO Counselor.
In a letter dated October 28, 1998, complainant, through his attorney,
indicated that early in 1998, he suspected discrimination on the
part of the responsible official concerning his performance ratings.
Complainant indicates that he was denied promotion opportunities, as a
result, but he does not indicate any specific nonselections. Complainant
also indicated that although he was subsequently reassigned to another
supervisor as he requested on April 6, 1998, such reassignment in July
1998, was unreasonably delayed. As relief for the complaint, complainant
requested, inter alia, compensatory damages and attorney's fees.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
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. United States Postal
Service, EEOC Request No. 05901150 (December 28, 1990); Starr v. United
States 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, complainant 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 complainant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
After a review of the record, we find that each of the alleged
discriminatory incidents, i.e., the performance ratings and awards,
were separate and discrete incidents, which should have triggered any
suspicion of discrimination at the time they occurred. Thus, we find
that complainant's claims do not constitute a continuing violation. See
Valentino v. United States Postal Service, 674 F.2d 56 (D.C. Cir. 1982);
Clark v. Olinkraft, Inc., 556 F.2d 1219 (5th Cir. 1977), cert. denied,
434 U.S. 1069 (1978). Complainant also claimed that he did not become
aware of discrimination until June 4, 1998, when he learned that his
coworker, whose performance was below his own, received the same rating
in �Inventory Management� as he received. After a careful review of
the record, we find, however, that complainant had or should have had
a reasonable suspicion of discrimination concerning the matters at the
time the alleged incidents occurred. Specifically, complainant clearly
indicated that he was not satisfied with his performance ratings since
1995, and raised his concerns to the responsible official on numerous
occasions since 1996. Complainant also indicated that early 1998,
he suspected discrimination on the part of the responsible official
concerning his low performance ratings. Furthermore, it appears that on
April 6, 1998, complainant requested reassignment to another supervisor
as a result of the responsible official's purported unfavorable treatment
toward him. Based on the foregoing, we find that complainant knew or
should have reasonably suspected of discrimination concerning his 1995,
1996, and 1997 performance ratings and awards at the latest on or around
April 6, 1998, but he did not contact an EEO Counselor until July 9,
1998, which was beyond the 45-day time limit set by the regulations.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.107(a)(5)) provides that prior to a request
for a hearing in a case, the agency shall dismiss an entire complaint
that is moot. The issues raised in a complaint of discrimination are no
longer in dispute (1) if it can be said with assurance that there is no
reasonable expectation that the alleged violation will recur, and (2)
if interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation. County of Los Angeles v. Davis,
440 U.S. 625 (1979).
The agency stated that complainant's claims concerning the 1998
performance rating and award were moot since the rating was, subsequently,
raised and complainant, subsequently, received the award. Complainant,
however, contends that his award was unreasonably delayed. Furthermore,
we note that complainant was seeking compensatory damages, attorney's
fees, and reimbursement for sick leave, for the complaint. The Commission
has held that an agency must address the issue of compensatory damages
when a complainant shows objective evidence that he has incurred such
damages, and that the damages are related to the alleged discrimination.
See Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992), request to reopen denied, EEOC Request No. 05930306
(February 1, 1993). Because complainant in this case made a claim for
compensatory damages related to the alleged discriminatory conduct
of the agency, the agency should have requested that complainant
provide some objective proof of the alleged damages incurred, as well as
objective evidence linking those damages to the adverse actions at issue.
See Benton v. Department of Defense, EEOC Appeal No. 01932422 (December
10, 1993). Therefore, we find that this claim has not been rendered moot.
Accordingly, the agency's final decision is hereby MODIFIED.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant 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 complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant and an
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 (K1199)
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
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant 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. �� 1614.407
and 1614.408. 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 complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision 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. 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 (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:
February 24, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the 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.