Randall R. Evans, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01993689 (E.E.O.C. Nov. 5, 1999)

01993689

11-05-1999

Randall R. Evans, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Randall R. Evans v. Department of the Treasury

01993689

November 5, 1999

Randall R. Evans, )

Appellant, )

)

v. ) Appeal No. 01993689

) Agency No. 99-3100

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

______________________________)

DECISION

On March 31, 1999, the appellant, through his attorney, filed a timely

appeal with this Commission from a final agency decision (FAD) received by

him on March 12, 1999, pertaining to his complaint of unlawful employment

discrimination in violation of the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,

the appellant alleged that he was subjected to a continuing violation

of discrimination on the basis of age (May 30, 1951), when he was not

selected for eight specific vacancy announcement numbers (VAN) which

provided promotion opportunities.

By letter dated February 12, 1999, the agency provided the appellant

an opportunity to explain his reasons for not timely contacting an

EEO counselor regarding his alleged nonselections from 1996 to 1998.

The agency requested that the appellant include the dates he applied for

the positions and the dates he was not selected or the dates he became

aware that he was not selected for the positions.

On February 18, 1999, the appellant responded to the agency's request

stating that in June 1998, when he learned that a younger individual,

whom he knew, was selected for VAN 98-160, he "began to be concerned

about whether he was being discriminated against on the basis of age,"

and he was unaware of any requirement to consult an EEO counselor.

The appellant further stated that he wrote a letter in October 1998,

requesting the age of various individuals who were selected for positions

to which he had previously applied. Upon receiving a response to his

request, in December 1998 he went to the EEOC office to file an age

discrimination complaint. Moreover, the appellant contends that his

nonselection for VAN 98-507 in November 1998, makes his complaint timely

because all the incidents are interrelated by a common nexus or theme.

Finally, he contends that disparate treatment on the basis of age is by

definition not as "instantly obvious" as disparate treatment on other

bases.

On March 3, 1999, the agency dismissed the appellant's allegations of age

discrimination from 1996 through November 1998, pursuant to 29 C.F.R. �

1614.107(b) because he failed to comply with the time requirement to seek

EEO counseling. The agency stated in its decision that an EEO poster

was properly posted in the appellant's office and that the permanent

effects of nonselection should have triggered the appellant's awareness

of discrimination; thus, no continuing violation occurred. By separate

letter the agency accepted the appellant's allegations of nonselection

for two positions which had occurred in December 1998.

The appellant filed the instant appeal again contending that he did not

know of the time requirement and that the continuing violation theory

should apply. The appellant contends that he meets the three part test

for a continuing violation set forth in Berry v. Board of Supervisor's

L.S.U., 715 F.2d 971, 981 (5th Cir. 1983). First, he asserts that the

allegations all contain the same type of discrimination - nonpromotion

because of age. Second, the promotion denials occurred at 12 month to

one month intervals, the last six occurring within a nine month period

in 1998. Third, the promotion denials were not permanent because he

was "repeatedly greeted with opportunity after opportunity to apply for

a promotion."

Additionally, the appellant asserts that he qualifies for an extension of

the 45-day time limit pursuant to 29 C.F.R. � 1614.105(a)(2). First, the

appellant states that the mere posting of the EEO notice is insufficient

to conclude that he knew of the 45-day time requirement because the

regulation requires that the notice be both posted and publicized.

Here, the appellant asserts that the notice was posted on a cluttered

bulletin board as indicated by three photos taken by him on March 19,

1999. Second, the appellant states that he was never given notice of EEO

rights or requirements when he was informed that he had not been selected.

Lastly, he asserts that he can not recall ever receiving training on the

45-day time limit. Therefore, he contends that the 45-day time limit

should be extended because the agency did not reasonably inform him of

his rights.

The appellant also asserts that he was not aware of the discrimination

until he received the agency's December 1998 letter informing him of the

ages of the individuals selected for the positions and that such lack of

knowledge constituted "circumstances beyond his control." Finally, he

states that the cumulative effect of the combination of all the factors

in this case should warrant an extension under the "catchall" provision

of 29 C.F.R. � 1614.105(a)(2).

In its response to the appellant's appeal, the agency continues to assert

that no continuing violation has occurred and that the appellant failed

to show an extension of the 45-day time limit for contacting an EEO

counselor was warranted. Accordingly, the agency requests affirmation

of its partial dismissal of the appellant's complaint pursuant to 29

C.F.R. � 1614.107(b) because the appellant failed to comply with the

applicable time limits.

ANALYSIS

EEO Counselor Contact

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

of discrimination 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 Ball v. U.S. Postal Service,

EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

29 C.F.R. � 1614.105(a)(2) further provides that the agency or the

Commission shall extend the time limits when the individual shows that

he was not notified of the time limits and was not otherwise aware of

them, that he did not know and reasonably should not have known that

the discriminatory matter or personnel action occurred, that despite

due diligence he was prevented by circumstances beyond his control from

contacting the Counselor within the time limits, or for other reasons

considered sufficient by the agency or the Commission.

We note that the appellant does not dispute that his first contact

with an EEO counselor was on December 30, 1998, despite his admission

that in June 1998, he "began to be concerned about whether he was being

discriminated against on the basis of age." He merely asserts that the

45-day time limit should be extended for every reason available under

29 C.F.R. � 1614.105(a)(2).

It is well settled that constructive knowledge of the time limit for

contacting an EEO counselor will be imputed to a complainant where the

agency has fulfilled its statutory duty of posting notices informing

employees of their rights and obligations under Title VII. See Thompson

v. Department of the Army, EEOC Request No. 05910474 (September 12,

1991). In order to impute constructive knowledge to the complainant,

the agency may not rely on a generalized affirmation that it posted EEO

information; it must submit evidence that the poster contained notice

of the applicable time limits. See Pride v. U.S. Postal Service, EEOC

Request No. 05930134 (August 19, 1993).

Here, the agency has submitted a copy of the notice, which contains inter

alia, the applicable time limit for contacting an EEO counselor, that

it has posted on a bulletin board within the appellant's work facility.

Additionally, the record contains a memorandum and photo showing that

the notice is and has been posted on the bulletin board at the facility.

We find that the appellant, a federal employee for more than ten years,

had constructive knowledge of the time limit in which to contact an EEO

counselor.

As to the appellant's assertion that he never received notice of EEO

rights and requirements when he was informed that he had not been

selected, we note that he points to no law, regulation or rule that

requires an agency to provide an EEO notice when informing an applicant

of nonselection. We find no merit in the appellant's assertion that

the agency did not reasonably inform him of the time limit for EEO

counselor contact.

Continuing Violation

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 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, i.e., the existence of a discriminatory system

or policy, or a series of related discriminatory or retaliatory acts

occurring both before and during the filing period. Rohrer v. Department

of Health and Human Services, EEOC Request No. 05940965 (April 12, 1995);

Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308

(June 13, 1989). If one or more of the interrelated acts falls within

the time period for contacting an EEO Counselor, the complaint is deemed

timely with regard to all acts. Verkennes v. Department of Defense,

EEOC Request No. 05900700 (September 21, 1990).

The key to a viable continuing violation complaint is the interrelatedness

of the acts that are alleged to be discriminatory. See Cruz v. Department

of Transportation, EEOC Request No. 05940434 (December 22, 1994) (citing

Scott v. Claytor, 469 F. Supp. 22, 25 (D.D.C. 1978). The necessary

interrelatedness may be established in a failure to promote case by

showing, e.g., that the positions sought were the same or substantially

similar and that the same officials were involved in the selections.

Cruz, EEOC Request No. 05940434.

We agree with the agency's assertion that the appellant cannot establish

a continuing violation. The record shows that the 1996-1998 nonselections

of which the appellant complains, all involved different hiring officials

in various offices outside the Flint Michigan office where he continues

to work, i.e., 1996 - Detroit Michigan; 1997 - Portland Oregon; 1998 -

Jackson, Mississippi, Austin, Texas, Chicago, Illinois, and Toledo, Ohio.

Moreover, the Commission has previously held that a nonselection for

a competitive promotion, which, once the selection decision is made,

becomes a completed act, has the degree of permanence which should trigger

a person's awareness to assert his EEO rights. See Dean v. Department

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

Accordingly, we affirm the agency's dismissal of the appellant's

allegation of nonselections during the 1996-1998 period pursuant to 29

C.F.R. � 1614.107(b) because he failed to comply with the applicable

time limits to contact an EEO counselor.

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:

November 5, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations