05990445
11-05-1999
Roosevelt Anderson, Jr. Appellant, v. William S. Cohen, Secretary, U.S. Department of Defense, (National Imagery and Mapping Agency), Agency.
Roosevelt Anderson, Jr. )
Appellant, )
) Request No. 05990445
v. ) Appeal No. 01980599
) Agency No. GI-97-9
William S. Cohen, )
Secretary, )
U.S. Department of Defense, )
(National Imagery and )
Mapping Agency), )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
Roosevelt Anderson, Jr. (appellant) initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Anderson
v. Department of Defense, EEOC Appeal No. 01980599 (August 20, 1998).
EEOC Regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established
policy, 29 C.F.R. �407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). Appellant's request is denied.
On September 25, 1996, appellant initiated contact with an EEO
counselor when he was not selected for a position pursuant to a Vacancy
Announcement dated July 30, 1996. On December 18, 1996, appellant filed
a formal complaint alleging that he was the victim of unlawful employment
discrimination on the bases of race (African-American) and age (over 40).
In his complaint, appellant also alleged he was subjected to continuous
non-selections for positions during the prior fifteen years.
On January 6, 1997, the agency accepted appellant's allegation that he
had been discriminated against when he was not selected for a position
pursuant to a vacancy announcement dated July 20, 1996. Appellant then
requested information as to his remaining non-selections. In response,
the agency requested that appellant clarify information regarding the
remaining non-selections, including his reasons for failing to make
timely EEO contact.
By letter dated May 28, 1997, appellant responded to the agency's
request for information. Therein, appellant stated that he had not
previously pursued the EEO process for his six non-selections in 1984
and 1989, because he, �...felt it would be resolved by pointing out
the discrepancies to the Personnel Office.� The record also reveals
that appellant initiated the grievance process with respect to the 1984
non-selections. Appellant added that when he later considered pursuing
his complaint through the EEO process in 1985, he was told that �...it
was out of the purview of a complaint due to time restraints.� With
respect to his non-selections in 1991 and 1992, appellant stated that he
had not pursued the EEO process because �although in the back of my mind
I felt inclinations of discrimination I refused to admit it to my self.
I now realize it was true and regret not filing.�
By letter dated June 27, 1997, appellant supplied additional information
to the agency as to his reasons for failing to make timely EEO contact.
Therein, he stated that he felt �the matter could be easily resolved by
merely pointing out the discrepancies in my ranking to the personnel
office.� Appellant added that he remembered seeing EEO posters, but
could not recall whether they contained the time limits.
On September 24, 1997, the agency issued a final decision. Therein,
the agency determined that appellant's complaint was comprised of
allegations that he was not selected for three positions in 1984;
three positions in 1989; one position in 1991; one position in 1992;
and one position in 1996. The agency accepted the allegation relating
to the non-selection in 1996 for investigation.
The agency further determined, however, that appellant's remaining
allegations should be dismissed for failure to make timely EEO contact.
The agency determined that the timely allegation was not part of a
continuing violation.
Appellant argues in his request for reconsideration that the
non-selections set forth in his complaint constitute a continuing
violation. Appellant also argues that he made contact with an EEO
Representative in 1985, once he learned of the 1984 non-selections.
According to appellant, the EEO Representative told him that the time
limitations had run, and that he could contact the personnel office.
On November 1, 1985, appellant filed an informal grievance through his
supervisor. After contacting personnel to inquire about his complaint,
appellant states he was told in January 1986, that time limits had run.
Concerning his allegations of the 1989 non-selections, appellant states
that he directed his concerns about his ranking to the personnel office,
as he believed �that matter could be resolved by merely pointing it out
to personnel officials.� With respect to his untimely allegations for
the non-selections in 1991 and 1992,
appellant points out, again, that he suspected discrimination
during the interview, and regrets not filing a complaint at that time.
Whether a series of acts, such as non-promotions, constitutes a
continuing violation depends on whether the acts were similar in nature,
whether they were recurring or isolated, and whether they had a degree
of permanence that should have triggered a reasonable suspicion of
discrimination. Jackson v. Department of the Air Force, EEOC Request
No. 05950780 (May 24, 1995). In this case, the dismissed non-selections
appear to be qualitatively distinct from the accepted non-selection.
Appellant offers no evidence that the same selecting official was
involved in all of the non-selections. We further find that appellant
reasonably suspected discrimination in the early nineties, but failed to
make contact with an EEO counselor. We therefore find that the rejected
non-selections are discrete separate occurrences that do not constitute
a continuing violation.
Moreover, because there was roughly a five year gap in between appellant's
1984 non-selections and his discovery of facts leading to a reasonable
suspicion of discrimination, we find that appellant failed to act with
due diligence in exercising his rights. Consequently, the doctrine of
laches is applicable. The doctrine of laches is an equitable remedy
under which an individual's failure to diligently pursue their legal
remedies can bar their claims. Davis v. Department of the Navy, EEOC
Request No. 05910476 (August 15, 1991); O'Dell v. Department of Health
and Human Services, EEOC Request No. 05901130 (December 27, 1990).
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request does not meet the criteria of 29 C.F.R. �1614.407(a) and it is
the decision of the Commission to deny appellant's request. The decision
in EEOC Appeal No. 01980599 remains the Commission's final decision in
this matter. There is no further right of administrative appeal from
a decision of the Commission on a request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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. 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.
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,
__11/5/99__________ ______________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations