Minnie P. Long, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionApr 7, 2000
01a00353 (E.E.O.C. Apr. 7, 2000)

01a00353

04-07-2000

Minnie P. Long, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Minnie P. Long, )

Complainant, )

)

v. ) Appeal No. 01A00353

) Agency No. 2-99-2114

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

____________________________________)

DECISION

On October 14, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) issued on September 14,

1999, pertaining to 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.<1> Pursuant to 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified at 29 C.F.R. � 1614.405), the Commission accepts

the complainant's appeal from the agency's final decision in the

above-entitled matter.

ISSUE PRESENTED

The issue presented herein is whether the agency properly dismissed the

present complaint for failure to initiate timely contact with an EEO

Counselor.

BACKGROUND

For the relevant period of time, complainant was employed by the

Department of Transportation as a transportation specialist, GS-2101-7.

Complainant states that her position is a career ladder position

and since March 1997 she has not received a promotion. The record

reflects that on December 23, 1998, January 5, 1999 and January 6,

1999 complainant confronted management officials to inquire as to why

she was not being promoted and to request that she in fact be promoted.

Complainant states that management responded that she was not ready for

a promotion and that she was not automatically entitled to one.

Believing that she was the victim of discrimination, on June 1, 1999,

complainant initiated contact with an EEO Counselor. During the

counseling period, complainant, a GS-7 employee, stated that she had

been denied a promotion since March 1997, despite the fact that she is

in a career ladder position with a potential to the GS-12 level.

Counseling failed, and on July 13, 1999, complainant filed a formal

complaint claiming that she was the victim of unlawful employment

discrimination on the bases of her race (African-American) and gender

(female). The formal complaint was comprised of the matters for which

complainant underwent EEO Counseling discussed above.

On September 23, 1999, the agency issued a final decision dismissing

the present complaint for failure to initiate timely contact with an

EEO Counselor. The agency found that the complainant should have had

a reasonable suspicion that she may be the victim of discrimination in

January 1999 and therefore her initial EEO Counselor contact on June 1,

1999, was beyond the forty-five day limitations period.

On appeal, complainant argues that she in fact initiated timely contact

with an EEO counselor, because managements refusal to promote her is

a continuing violation and the last incident occurred on May 21, 1999,

therefore, her initial contact on June 1, 1999 was timely.

ANALYSIS AND FINDINGS

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 Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). 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.

Upon review of the entire record and complainant's statement on appeal,

it is clear that complainant viewed all the incidents when she was

denied career promotions as a continuing violation. The Commission

has held that the time requirement for contacting an EEO Counselor

can be waived as to certain allegations within a complaint when the

complainant alleges a continuing violation, that is, a series of related

or discriminatory acts, or the maintenance of a discriminatory system or

policy before and during the filing period. See McGiven v. USPS, 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. USPS, 674 F.2d 56, 65 (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. Weinberger,

645 F.2d 1070 (D.C. Cir. 1981).

In the case at hand, complainant's allegation regarding being improperly

denied career promotions for over two years, involves a number of

potentially interrelated incidents of discrimination orchestrated

by agency officials. However, 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).

Here, we find that the alleged discriminatory actions of denying

complainant her career ladder promotion, were discrete acts which should

have prompted complainant to have a reasonable suspicion of discrimination

at the time that they occurred. However, the Commission has also found

that, unlike a nonselection for a competitive promotion, which, once

the selection decision is made, becomes a completed act, the denial of

a career-ladder promotion occurs each and every day after the date of

eligibility that the promotion is not granted. See Dean v. Department

of Treasury, EEOC Request No. 05920202 (April 23, 1992). As the instant

complaint involves the denial of a career-ladder promotion, we find that

these issues are timely under the continuing violation theory.

CONCLUSION

For the reasons set forth herein, the Commission hereby REVERSES the

decision of the agency dismissing the present complaint for untimely EEO

counselor contact. Accordingly, this complaint is remanded to the agency

for further processing in accordance with this decision and applicable

regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded claim 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 (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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

(R1199)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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:

April 7, 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 Equal Employment Assistant

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.