01990910
09-07-1999
Lawrence Nelson, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Lawrence Nelson v. Department of the Army
01990910
September 7, 1999
Lawrence Nelson, )
Appellant, )
)
v. ) Appeal No. 01990910
) Agency No. 9708H1180
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On November 5, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated October 6, 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.,
�501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et
seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. �621 et seq. In his complaint, appellant
alleged that he was subjected to discrimination on the bases of race
(African-American), color (black), physical disability, sex (male), age
(46), and in reprisal for prior EEO activity when:
On November 1, 1996, appellant was denied adequate training to permit
him to do his job properly;
In December 1996, appellant was denied resources, i.e. support staff,
to permit him to do his job properly;
On May 7, 1996, appellant was not given the accommodation of a computer
at home;
Appellant was not allowed to go to command briefings (date unknown);
On August 21, 1998, appellant was not afforded the necessary assistance
by Civilian Management staff to help appellant resolve his problems
with the Thrift Savings Plan (TSP);
Appellant's supervisor denied appellant administrative leave and charged
appellant with annual leave to go to a job interview on March 18, 1997;
On October 28, 1996, appellant was denied access to his official
personnel folder when appellant requested it to prepare an appeal to
the EEOC;
Appellant was denied reasonable accommodations in the form of a reader, a
twenty (20) inch computer monitor, and file cabinets that are accessible
to appellant; and
In March 1997, appellant learned that he was not given the same level
award as the other division chiefs in June 1996.
The agency accepted allegations (6) and (9), but dismissed
allegations (1), (2), (3), (5), and (7) pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely counselor contact. Specifically,
the agency found that appellant's initial counselor contact occurred
on January 27, 1997. The agency dismissed allegation (4) pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
Specifically, the agency found that appellant suffered no personal
impact or harm from not attending the command briefings. The agency
also dismissed allegation (8), as well as allegations (2) and (4) on
alternate grounds, for failure to cooperate pursuant to EEOC Regulation
29 C.F.R. �1614.107(g). Finally, the agency dismissed allegation (5)
on alternate grounds, for being moot pursuant to EEOC Regulation 29
C.F.R. �1614.107(e).
On appeal, appellant argues that he was not uncooperative, but was
advised by the agency EEO office that his case would be put on hold
during his surgery and recovery. Appellant claims that he has suffered
from a pattern of discrimination for six years. Appellant also alleges
that because of his prior EEO complaint, he has been given unrealistic
assignments and inadequate clerical support.
In response, the agency contends that because appellant has not
claimed that his allegations were triggered after the occurrence of
the incidents, the time limitation begins to run from the date of each
occurrence. Regarding allegation (5), the agency argued that appellant
admitted that his TSP problem was solved, and therefore, his allegation
was rendered moot. With respect to appellant's failure to cooperate,
the agency argued that it repeatedly requested information from appellant,
but that appellant never responded with the relevant information.
The agency attached several documents to its statement on appeal,
including the following requests for information: a letter dated
August 14, 1997, which requests that appellant specifically explain his
allegations, but does not advise appellant of possible dismissal should
he fail to respond; a letter dated November 4, 1997, which requests
that appellant provide the date on which each allegation occurred,
and which informs appellant that his failure to respond within 15 days
could result in dismissal; a letter dated June 9, 1998, which requests
that appellant respond to the August 14, 1997 letter, and which provides
"you have 15 days to reply to this office," but does not warn appellant
of possible dismissal; and a letter dated July 24, 1998, which requests
that appellant provide dates for his allegations, and advises appellant
that his complaint may be dismissed for failure to cooperate if he
fails to respond within 15 days. The agency also enclosed a memo which
purports to show the dates on which appellant received each request
for information, and two certified receipt cards both signed by someone
other than appellant, dated June 12, 1997, and November 15, 1997.
The agency also included a copy of the November 4, 1997 letter with a date
handwritten next to each allegation.<1> Further, the agency included
a letter from appellant, dated August 18, 1998, in which appellant
contends that he recently learned of several requests for information,
and obtained copies of the requests from the EEO office because he never
received any of the requests by mail. Appellant argues that both of
the return receipt cards were signed by his eleven-year old daughter.
A review of the record reveals that appellant's formal complaint, dated
June 25, 1998, requests $300,000 in compensatory damages, and states
"this is an ongoing process of discrimination. This process was started
over two years ago."
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. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period 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 (Apr. 22, 1999); McGivern v. United States
Postal Service, EEOC Request No. 05901150 (Dec. 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, 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 Maldonado v. Department of the Interior, EEOC Request No. 05900937
(Oct. 31, 1990) Verkennes v. Department of Defense, EEOC Request
No. 05900700 (Sept. 21, 1990); Vissing v. Nuclear Regulatory Commission,
EEOC Request No. 05890308 (June 13, 1989). 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).
It is well-settled that where, as here, there is an issue of timeliness,
"[a]n agency always bears the burden of obtaining sufficient information
to support a reasoned determination as to timeliness." Williams
v. Department of Defense, EEOC Request No. 05920506 (Aug. 25, 1992).
Moreover, where, as here, a complainant alleges "recurring incidents"
of discrimination, "an agency is obligated to initiate an inquiry into
whether any allegations untimely raised fall within the ambit of the
continuing violation theory." Guy v. Department of Energy, EEOC Request
No. 05930703 (Dec. 16, 1993) (citing Williams). As the Commission further
held in Williams, where an agency's final decision fails to address
the issue of continuing violation, the complaint "must be remanded for
consideration of this question and issuance of a new final agency decision
making a specific determination under the continuing violation theory."
Accordingly, the agency must determine on remand whether allegations (1),
(2), (3), (5), and (7) comprise part of a continuing violation.
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).
Appellant's lack of access to meetings, if proven true, could directly
affect a term, condition, or privilege of appellant's employment.
Therefore, the agency's dismissal of allegation (4) for failure to state
a claim was improper.
Regarding the agency's alternative grounds for dismissing allegation
(5), EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal
of a complaint, or portions thereof, when the issues raised therein
are moot. When the agency dismisses an allegation for being moot,
however, the Commission has held that an agency must address the issue
of compensatory damages when a complainant shows objective evidence that
he has incurred compensatory damages, and that the damages are related
to the alleged discrimination. See Routson v. National Aeronautics and
Space Administration, EEOC Request No. 05970388 (Mar. 18, 1999); Jackson
v. United States Postal Service, EEOC Appeal No. 01923399 (Nov. 12, 1992),
request to reopen denied, EEOC Request No. 05930306 (Feb. 1, 1993).
The Commission finds that appellant requested compensatory damages,
but the agency failed to address the issue in its FAD. Accordingly,
the agency's dismissal of allegation (5) was improper.
EEOC Regulation 29 C.F.R. �1614.107(g) provides that an agency shall
dismiss a complaint, or a portion of a complaint, where the agency has
provided the complainant with a written request to provide relevant
information or otherwise proceed with the complaint, and the complainant
has failed to respond to the request within 15 days of its receipt
or the complainant's response does not address the agency's request,
provided that the request included a notice of the proposed dismissal.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission has stated that "it is only in cases where the
complainant has engaged in delay or contumacious conduct and the
record is insufficient to permit adjudication that the Commission has
allowed a complaint to be canceled for failure to prosecute/cooperate."
Kroeten v. United States Postal Service, EEOC Request No. 05940451
(Dec. 22, 1994) (citation omitted).
Initially, the Commission notes that of the four requests sent by the
agency, only two, dated November 4, 1997, and July 24, 1998, inform
appellant that failure to respond could result in dismissal as required
under 29 C.F.R. �1614.107(g). Further, of these two requests, the agency
only has proof that one of the documents was received at appellant's
residence, by appellant's daughter. The self-serving internal agency memo
that lists the dates on which appellant received each correspondence, but
that lacks objective proof of receipt such as a signed and dated certified
receipt card, is not evidence that appellant received the requests.
In general, the Commission has effectively relied upon a certified
receipt signed by an unidentified individual at the complainant's
address on a date certain to establish a presumption of constructive
receipt of the document by the complainant on that date. See Pazinick
v. United States Postal Service, EEOC Request No. 05930337 (Sept. 10,
1993); Knowles v. Department of Defense, EEOC Request No. 05920956
(Mar. 18, 1993). We note, however, that the complainant may rebut
this presumption by demonstrating that the individual who signed for
the document was not a family or household member of suitable age or
discretion to do so. See Perkins v. United States Postal Service, EEOC
Request No. 05960567 (Dec. 5, 1997); Baunchand v. United States Postal
Service, EEOC Request No. 05920389 (Mar. 29, 1992) (request granted
because appellant demonstrated that the final agency decision had been
improperly delivered to an 11-year old cousin at an outdated address);
Fontanella v. General Services Administration, EEOC Request No. 05940131
(Apr. 10, 1995).
The Commission finds that appellant's eleven-year old daughter is not
a household member of suitable age and discretion to accept important
legal documents. Further, it appears that appellant responded to the
agency's requests once he was made aware of them -- appellant explained
that he did not receive the requests by letter dated August 18, 1998,
and provided dates for most of his allegations. Therefore, appellant
has not engaged in contumacious conduct, and the agency's dismissal of
allegations (2), (4), and (8) for failure to cooperate was improper.
CONCLUSION
The agency's dismissal of allegations (4) and (8) is REVERSED, and
the allegations are REMANDED for further processing. Further, the
agency's dismissal of allegations (1), (2), (3), (5), and (7) is VACATED,
and the allegations are REMANDED for a supplemental investigation and
determination as ordered below.
ORDER
The agency is ORDERED to perform the following:
Within thirty (30) days of the date this decision becomes final, the
agency shall conduct a supplemental investigation to determine whether
allegations (1), (2) (3), (5), and/or (7), when considered in light of
allegations (4), (6), (8), and (9), are part of a continuing violation;
Within forty-five (45) days of the date this decision becomes final, the
agency shall issue a final agency decision and/or notice of processing
determining the timeliness of allegations (1), (2), (3), (5), and (7);
The investigation of allegations (4) and (8) shall be held in abeyance
pending the outcome of provision (2) above. Thereafter, allegations (4)
and (8) shall be investigated in accordance with 29 C.F.R. �1614.108,
along with allegations (1), (2), (3), (5), and/or (7), if accepted.<2>
The agency shall issue to appellant a copy of the investigative file and
also shall notify appellant of the appropriate rights within one hundred
seventy-five (175) 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 supplemental investigation, final agency decision
and/or notice of processing, 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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
Sept. 7, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency used these dates to define appellant's allegations in its FAD.
No date was provided for allegations (4) and (8).
2Depending on what stage of the process allegations (6) and (9) are
pending upon remand of the present case, the agency should make all
reasonable attempts to consolidate allegations (6) and (9) with the
allegations to be processed pursuant to provision (3) above.