01983790
06-04-1999
LeNoir Weibel, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
LeNoir Weibel v. Department of Agriculture
01983790
June 4, 1999
LeNoir Weibel, )
Appellant, )
) Appeal No. 01983790
v. ) Agency No. 940729
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. �621 et seq. The final agency decision was
dated January 30, 1998. The appeal was postmarked on April 17, 1998.
The timely<1> appeal, therefore, is accepted in accordance with EEOC
Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed one of
appellant's allegations for failure to state a claim and the other for
untimely EEO Counselor contact.
BACKGROUND
Appellant began work on the National Appeals Staff in 1988. In 1991,
she applied for four GS-13 positions on the National Appeals Staff.
Appellant was not selected for any of these vacancies. The agency
advertised one GM-13 position (announcement #92-96JJ) on October 13, 1992.
Appellant did not apply for the vacancy. The position closed on November
13, 1992. A candidate was selected for the position. Appellant asserts
that she did not apply for the GM-13 position because of the previous
four rejections. Appellant initially contacted an EEO counselor on
February 8, 1994. Appellant filed a formal complaint on May 12, 1994,
alleging discrimination on the basis of age (57) when:
(1) she was not selected for any of the four GS-13 positions to which
she applied in 1991; and
(2) she did not apply for a single GM-13 position in October and November
of 1992 because she had been non-selected in the past.
In its final agency decision, dated January 30, 1998, the agency
dismissed both allegations in appellant's complaint. The agency
dismissed allegation (1) because the appellant did not timely raise the
four non-selections with an EEO Counselor. It dismissed allegation (2)
for failure to state a claim. This appeal followed.
ANALYSIS AND FINDINGS
Allegation (1)
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days of
the effective date of the personnel action. The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) for determining whether contact with an EEO Counselor is timely.
Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Under this standard, the regulatory limitations period "is not triggered
until complainant reasonably suspects discrimination, but before all the
facts that would support a charge of discrimination have become apparent."
Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (March 29,
1990).
The Commission finds that the agency properly dismissed allegation
(1) for untimely EEO counselor contact. The appellant contacted the
counselor more than 45 calendar days after the allegedly discriminatory
non-selections. Appellant applied for the four positions in 1991, but
did not contact a counselor until February 8, 1994. The denial of these
positions were discrete actions which should have alerted the appellant
to the need to assert her rights.
Allegation (2)
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency
shall dismiss a complaint which fails to state a claim, pursuant
to �1614.103. 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,
national origin, age or disabling condition. �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 Air Force, EEOC Request No. 05931049
(April 21, 1994).
The Commission has held that:
Normally, a candidate for a vacancy who does not follow the correct
application procedures may be eliminated from consideration for the
position without raising an inference of discrimination. However, under
unusual circumstances, a complainant may still maintain a discrimination
claim even if he or she failed to properly apply for a position, if it
can be proven that he or she was discouraged from applying by the agency
or that the application process was informal and secretive.
Ozinga v. Department of Veterans Affairs, EEOC Request No. 05910416 (May
13, 1991)(citing Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987);
Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir. 1984);
Ferguson v. du Pont Co., 560 F.Supp 1172, 1192-1193 (D.Del. 1983).
In the instant case, appellant did not apply for the 1993 GM-13 vacancy
and therefore the fact that she was not hired for the position does not
raise an inference of discrimination. Appellant has not proven that
she was discouraged by the agency from applying. She notes only that
she did not apply because of the previous rejections. It was not the
agency, however, that actively discouraged her from applying for the
GM-13 positions. The Commission finds, therefore, that allegation (2)
fails to state a claim.
In her complaint, appellant stated that she had been denied a GS-13
position since 1991. A fair reading could suggest that she was alleging
a continuing violation of employment discrimination. When a continuing
violation is properly alleged, the normal time for filing a formal
EEO complaint is suspended. Rowan v. Department of Transportation,
EEOC Request No. 05940661 (February 24, 1995). If at least one of the
acts complained of falls within the limitations period, a complaint
filed at any time within this period is timely filed with respect to
all acts which are part of the continuing violation. Id. An essential
ingredient of a continuing violation is an analogous theme uniting the
timely and untimely acts of alleged discrimination by the employer into
a continuous pattern. Id.
In the present case, appellant suggests that, since 1991, the agency
engaged in a pattern of denying her GS-13 status. We find that appellant
has failed to establish that a continuing violation has occurred.
As previously noted, a continuing violation requires that at least one
of the alleged discriminatory acts must fall within the time limitation
period. Appellant sought EEO counseling on February 8, 1994; therefore,
the time limitation period began 45 days earlier on December 25, 1993.
Allegation (2) was the only matter that occurred during the period in
question. Since, however, we have affirmed the agency's dismissal of
allegation (2) on the grounds that it failed to state a claim, we find
that the appellant does not have a timely allegation remaining. She has
failed, therefore, to establish a continuing violation in this case.
CONCLUSION
Accordingly, the decision of the agency was proper and 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. 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 (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:
June 4, 1999
______________ ___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The agency did not supply a copy of a certified mail return receipt or
any other material capable of establishing the date appellant received the
FAD. Since the agency failed to submit evidence of the date of receipt,
the Commission presumes that appellant's appeal was filed within thirty
(30) days of receipt of the agency's final decision. See 29 C.F.R.
�1614.402(a).