01995315
12-21-2001
Ronald Estus, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Ronald Estus v. Department of Veterans Affairs
01995315
December 21, 2001
.
Ronald Estus,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01995315
Agency No. 93-2863
Hearing No. 250-94-8182X
DISMISSAL
On June 18, 1999, complainant timely initiated an appeal from the agency's
final decision dated May 5, 1999, concerning his equal employment
opportunity (EEO) complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleges he was discriminated against
on the basis of his race (African-American) when he was denied numerous
promotional opportunities to positions outside of the Environmental
Management Service (EMS). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue presented in this appeal is whether the agency properly
dismissed complainant's complaint for failure to timely contact an
EEO counselor.
BACKGROUND
The record evidence reveals that during the relevant time, complainant
was employed as a WG-2/5 Housekeeping Aid in EMS at the North Little
Rock, Arkansas, facility known as Fort Root Veterans Affairs Hospital.
Complainant filed a formal EEO complaint on July 12, 1993, alleging
that the agency had discriminated against him as referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative report and was informed of his right to request a
hearing before an EEOC Administrative Judge (AJ) or alternatively, to
receive a final decision by the agency. Complainant requested a hearing
before an AJ. Since the issues raised by complainant were substantially
identical to complaints filed by five of his co-workers, the AJ, sua
sponte, consolidated the six separate complaints for hearing.<1>
By letter dated October 21, 1994, the agency requested that the AJ remand
the complaint back to the agency for a decision concerning timeliness.
The AJ decided not to remand the cases and assumed jurisdiction over the
complaints after finding that they were properly before her. Following the
hearing, the AJ issued a decision finding that complainant had established
that he had been subjected to intentional race discrimination.<2>
The AJ concluded that complainant established a prima facie case of
disparate treatment based on race. The record reflects that since 1979
complainant applied for numerous positions in the Engineering Service and,
although complainant was deemed qualified for several of these positions,
he was not selected, and in each instance the selectee was White.
In particular, the record evidence showed that complainant had attended
college where he earned 62 hours of college credits. The record also
reflects that complainant worked for five years as a mail clerk with the
United States Postal Service and four years in private industry doing
similar work. The record further reflects that complainant served as
an administrative specialist with the United Air Force. The record
evidence shows that although complainant had applied for over thirty
(30) positions as a Clerk prior to May 1993, he was not selected.
In fact, complainant listed thirty-seven (37) positions that he
had applied for on his Official Personnel File (OPF) data sheet.
However, at the hearing he provided evidence for only seventeen (17)
of the non-selections. The AJ determined that complainant failed to
establish a prima facie case of race discrimination for nine (9) of
the positions because complainant did not show that he was rejected in
favor of an individual not within his protected class, but found that
complaint established a prima facie case of race discrimination for the
following eight (8) positions: Clerk-Typist, GS-4; Voucher Examiner,
GS-3/4/5; Travel Clerk, GS-3/4; Clerk-Typist, GS-3/4; Clerk-Typist,
GS-2/3/4; Personnel Clerk, GS-3; Pharmacy Aid/Technician, GS-3/4; and,
Mail Clerk, GS-3/4.
The AJ also concluded that the agency failed to articulate legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ found
that the selecting official (SO) responsible for all of the hiring
in the service since 1980 was never asked to articulate reasons for
complainant's non-selections. In point of fact, the record reveals
that SO did not recall the selections at issue. The AJ noted that the
agency did not explain why complainant, although qualified for several
positions, was consistently rated lower than the selectees even when a
review of the record indicated that he was more qualified.
The agency's FAD dated May 5, 1999, rejected the AJ's decision.
In particular, the agency determined that the AJ's findings were
premature because the complaint should have been remanded back to
the agency for an acceptability determination concerning the issue of
timeliness. The Commission, in Estus v. Department of Veterans Affairs,
EEOC Appeal No. 01962215 (February 26, 1997), aff'd, EEOC Request
No. 059706259 (December 3, 1998), found the record inadequate to make a
determination as to timeliness. Accordingly, we remanded the complaint
to the agency and ordered the agency to contact complainant and provide
him the opportunity to show that he timely contacted an EEO counselor.
Upon receipt of the additional information from complainant, we also
ordered the agency to either issue a new FAD dismissing the complaint on
the grounds that complainant failed to timely contact an EEO counselor; or
to issue a new FAD accepting, rejecting, or modifying the AJ's findings.
After collecting additional information from complainant, the agency
dismissed all non-selections, except one, for untimely EEO counselor
contact. It is from this decision that complainant now appeals.<3>
ANALYSIS AND FINDINGS
The AJ denied the agency's motion to remand the complaint for a
determination of whether complainant had timely contacted an EEO counselor
on the basis that complainants had undertaken substantial expense in
preparation for the hearing and retained an expert and paid his fees,
including his travel expenses. The AJ also noted that the administrative
process proceeded for years without the agency dismissing the complaint
or otherwise raising timeliness issues. The Commission notes, however,
that it is well settled that a federal agency can raise issues of
timeliness at any time prior to a finding of discrimination by an AJ or
the agency itself. See e.g. Hill v. General Services Administration,
EEOC Request No. 05890383 (September 12, 1989). In addition, we note
that the motion to remand was made at a point in time when there had
been no express waiver of the time limits by the agency, no final agency
decision finding discrimination and no recommended decision of an AJ
finding discrimination. See Estus v. Department of Veterans Affairs,
EEOC Request No. 05970629 (December 3, 1998).
Nonetheless, the Commission further notes that dismissal of a complaint
based on untimeliness is not proper where complainant has alleged
a timely continuing violation. Specifically, EEOC Regulation 29
C.F.R. �1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the EEO counselor with forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within 45 days of the action. In determining
the timeliness of an EEO complaint under Title VII, the critical question
is whether any present violation exists. Delaware State College v. Ricks,
449 U.S. 250, 257 (1980).
The Commission has held that a complainant may not simply allege a
continuing violation, but must present facts that are sufficient to show
that he or she was subjected to an alleged ongoing unlawful employment
practice which continued into the 45-day period for EEO counselor contact.
Anisman v. Department of the Treasury, EEOC Request No. 05A00283 (April
12, 2001). In other words, while the time requirements for initiating EEO
counseling can be waived as to certain claims within a complaint, to do
so, complainant must show these claims constitute a continuing violation;
that is, a series of related discriminatory acts, having a common nexus
or theme, one of which fell within the time period for contacting an EEO
counselor. See Reid v. Department of Commerce, EEOC Request No. 05970705
(April 22, 1999). Factors that must be considered to determine whether
there is a nexus include: (1) the time interval between the timely and
untimely events; (2) whether the events were of a similar nature; (3)
whether the adverse actions were taken by the same individual or groups
of individuals; or (4) whether the actions were motivated by the same
discriminatory animus.
Complainant, in the instant case, identified numerous positions in
the Engineering Service that he had applied for and was non-selected.
These positions would have taken him out of the housekeeping unit and
placed him in an environment with more growth opportunity. The record
evidence shows that during the entire time frame that complainant applied
for these positions, the agency had the same selecting official in the
Engineering Service. In addition, complainant alleged that when he
contacted an EEO counselor, the alleged practice of treating similarly
situated White employees differently regarding promotions allegedly
remained in effect.
Nonetheless, the uncontroverted evidence shows that none of the allegedly
unlawful non-selections occurred within the forty-five (45) calendar
day period for EEO counselor contact. The only selection challenged by
complainant within the applicable time period was the agency's selection
of a Clerk, GS-3, in May 1993. However, that selection cannot render
complainant's contact with the EEO counselor timely because the evidence
establishes that complainant was selected for that position. See EEOC
Appeal No. 01A01952. Thus, we find that complainant has not stated a
timely raised continuing violation non-selection claim.
CONCLUSION
Based on the foregoing, we find that the agency properly dismissed
complainant's claims for untimely EEO counselor contact. We discern no
basis to reverse the agency's FAD. Therefore, after a careful review
of the record, including complainant's arguments on appeal, the agency's
response, and arguments and evidence not specifically discussed in this
decision, the Commission AFFIRMS the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 21, 2001
__________________
Date
1 See Horton v. Department of Veterans Affairs, EEOC Appeal No. 01961514
(February 26, 1997); Rhodes v. Department of Veterans Affairs,
EEOC Appeal No. 01962212 (February 26, 1997); Wilson v. Department of
Veterans Affairs, EEOC Appeal No. 01962213 (February 26, 1997); Mitchell
v. Department of Veterans Affairs, EEOC Appeal No. 01962214 (February 26,
1997); Estus v. Department of Veterans Affairs, EEOC Appeal No. 01962215
(February 26, 1997); and, Abernathy v. Department of Veterans Affairs,
EEOC Appeal No. 01962216 (February 26, 1997).
2 The AJ also found that complainant had failed to meet his burden of
proving disparate impact.
3 The agency also accepted the remaining non-selection for further
processing. However, while the agency found that this non-selection
was timely filed, it ultimately issued a FAD dismissing the complaint
for failure to state a claim because, since complainant was selected
for that position, he did not show that he was aggrieved. See Estus
v. Department of Veterans Affairs, EEOC Appeal No. 01A01952.