01992697
12-23-1999
Robert Allen, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Robert Allen v. Department of the Navy
01992697
December 23, 1999
Robert Allen, )
Complainant, )
)
v. ) Appeal No. 01992697
) Agency No. 9931935003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final
agency decision (FAD) concerning his 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> The final agency decision was
received on January 25, 1999. The appeal was postmarked February 17,
1999. Accordingly, the appeal is timely (see, 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. � 1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed the complaint
for failure to contact an EEO counselor in a timely manner.
BACKGROUND
The record indicates that on September 13, 1998, complainant initiated
contact with an EEO Counselor. Informal efforts to resolve his
concerns were unsuccessful. On January 3, 1999, complainant filed
a formal complaint. He alleged that he was the victim of unlawful
employment discrimination on the bases of race (black) and national
origin (African-American) when he was continuously denied promotions
in the Military Sealift Command.
On January 13, 1999, the agency issued a final decision dismissing the
complaint for untimely EEO contact. Specifically, the agency found
that the most recent alleged discriminatory act occurred in July 1996,
and the complainant did not make EEO contact until September 1998.
ANALYSIS AND FINDINGS
EEOC regulations provide that an aggrieved person must initiate contact
with a counselor within 45 days of the alleged discriminatory event.
29 C.F.R. � 1614.105(a)(1). This time limit shall be extended if the
complainant shows that he did not know about these time limits or for
other sufficient reasons. 29 C.F.R. � 1614.105(a)(2).
In this case, the complainant alleges that he did not know about the
45 day time limit. The agency indicates that the EEO posters were
conspicuously posted on the bulletin board next to the Purser's office.
Also, the agency argues that the complainant participated in an EEO
training session on sexual harassment. At this April 1998 session,
information regarding the EEO process was given to the complainant.
We find, therefore, that appellant had constructive knowledge of the
applicable time limits. See Santiago v. United States Postal Service,
EEOC Request No. 05950272 (July 6, 1995).
The complainant further alleges a continuing violation. He believes
that the agency consistently denied him promotions within the agency.
The Commission has held that the time requirement for initiating
EEO counseling could be waived as to certain allegations within a
complaint when the complainant alleged a continuing violation. 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).
To establish a continuing violation, a complainant must show a series
of related acts. One or more of these acts must fall within the
charge-filing period. United Airlines v. Evans, 431 U.S. 553, 558
(1977); see also Valentino v. USPS, 674 F.2d 56 (D.C. Cir. 1982).
The acts must be ongoing and related to the present violation so that
a connection, or nexus, among the acts is established. See Vissing
v. Nuclear Regulatory Commission, EEOC Request No. 05890308 (June 13,
1989); Verkennes v. Department of Defense, EEOC Request No. 05900700
(September 21, 1990); Maldonado v. Department of the Interior, EEOC
Request No. 05900937 (October 31, 1990). Should such a nexus exist,
appellant will have established a continuing violation and the agency
would be obligated to "overlook the untimeliness of the complaint with
respect to some of the acts". Scott v. Claytor, 469 F. Supp. 22, 26
(D.D.C. 1978).
The Commission finds that the complainant has failed to satisfy the
requirements for a continuing violation. He has not shown a series of
related acts. He only alleges a failure to promote him in July 1996.
In fact, this was the last time the complainant applied for a promotion
and the last time the Promotions Board has not met. This denial occurred
two years before the complainant contacted an EEO counselor. Therefore,
no series of interrelated events exist, and no alleged discriminatory
act has occurred within the 45 day period.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
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:
12/23/99 ____________________________
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
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.