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