Michelle M. Buckley, Appellant,v.Lt. General Kenneth A. Minihan, Director, National Security Agency, Agency.

Equal Employment Opportunity CommissionNov 3, 1999
01995110 (E.E.O.C. Nov. 3, 1999)

01995110

11-03-1999

Michelle M. Buckley, Appellant, v. Lt. General Kenneth A. Minihan, Director, National Security Agency, Agency.


Michelle M. Buckley v. National Security Agency

01995110

November 3, 1999

Michelle M. Buckley, )

Appellant, )

)

v. ) Appeal No. 01995110

) Agency No. 99-028

Lt. General Kenneth A. Minihan, )

Director, )

National Security Agency, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her 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., and the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq. The appeal was received by the Commission on June

11, 1999. The agency was unable to supply a copy of a certified mail

return receipt or any other material capable of establishing the date

appellant received the agency's final decision. Accordingly, 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.

Appellant contacted an EEO counselor on August 19, 1998, regarding

allegations of discrimination. Specifically, appellant alleged that

she was discriminated against when:

(1) on August 14, 1998, the agency failed to reasonably accommodate her

disability by denying her requset to move her desk to another location;

and

(2) from March 1997 through February 1998 she was subjected to a hostile

work environment.

Informal efforts to resolve appellant's concerns were unsuccessful.

On April 26, 1999, appellant filed a formal complaint alleging that she

was the victim of unlawful employment discrimination on the bases of

disability and reprisal.

On May 10, 1999, the agency issued a final decision (FAD) accepting for

investigation allegation (1), but dismissing allegation (2) for failure to

timely initiate contact with an EEO Counselor. Specifically, the agency

determined that appellant's August 19, 1998 EEO contact regarding events

which allegedly occurred between March 1997 and February 1998, was beyond

the applicable time period for seeking counseling. The FAD dismissed

allegation (2) pursuant to EEOC regulation 29 C.F.R. �1614.107(b) for

failure to comply with applicable time limits as proscribed in ��1614.105,

1614.106, and 1614.204(c).

On appeal, appellant argues that appellant did not initiate the EEO

complaint process in February 1998, as she determined that at that time,

she had not yet been subjected to a "continuous course of harassing

conduct." Moreover, appellant argues that in February 1998, she had

"hoped that Dispute Resolution would resolve the issue."

In response, the agency argues that allegation (2) was properly dismissed

for the reason set forth in its final decision. The agency further

argues that allegation (2) is not part of a continuing violation.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO 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.

Regarding allegation (2), appellant's EEO contact on August 19, 1998

occurred more that forty-five days after the alleged discriminatory

conduct occurring between March 1997 and February 1998. Appellant does

not indicate that she was unaware of the time limitations for counselor

contact, nor does she suggest that she was prevented in some way from

timely seeking counseling.

Moreover, a fair reading of appellant's complaint reflects that appellant

is alleging that allegation (2) is part of a continuing violation.

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). If one or more

of the acts falls within the forty-five day period for contacting an EEO

Counselor, the complaint is timely with regard to all that constitute

a continuing violation. See Valentino v. United States Postal Service,

674 F.2d 56 (D.C. Cir. 1982); Verkennes v. Department of Defense, EEOC

Request No. 05900700 (September 21, 1990). A determination of whether

a series of discrete acts constitutes a continuing violation depends on

the interrelatedness of the past and present acts. See Berry v. Board

of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983). It is necessary

to determine whether the acts are related by a common nexus or theme.

See Milton v. Weingerger, 645 F.2d 1070 (D.C. Cir. 1981).

In applying the continuing violation theory, one consideration is whether

a complainant had prior knowledge or suspicion of discrimination and the

effect of this knowledge. See Sabree v. United Brotherhood of Carpenters

& Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990). The Commission

described Sabree as holding that a plaintiff who believed he had been

subjected to discrimination had an obligation to file promptly with

the EEOC or lose his claim, as distinguished from the situation where a

plaintiff is unable to appreciate that he is being discriminated against

until he experienced a series of acts and is thereby able to perceive the

overall discriminatory pattern. Hagan v. Department of Veterans Affairs,

EEOC Request No. 05920709 (Jan. 7, 1993).

On appeal, appellant acknowledges that she refrained from pursuing

the EEO complaint process in February 1998, because she was hopeful

that dispute resolution initiatives would resolve the matters that were

raised in allegation (2). Appellant's statement reflects that she had

prior knowledge or suspicion of discrimination regarding the matters

addressed in allegation (2), as early as February 1998.

Accordingly, the Commission finds that allegation (2) is not part of a

continuing violation, and that the agency properly dismissed allegation

(2) of appellant's complaint involving incidents occurring between March

1997 and February 1998 on the grounds of untimely counselor contact.

In affirming the agency's decision with respect to allegation (2), we

are not persuaded by appellant's contentions on appeal concerning the

reasons for her delay in seeking counseling. The Commission therefore

determines that the agency's decision to dismiss allegation (2) as

untimely is AFFIRMED for the reasons set forth herein.

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:

11/03/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations