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.