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