01a00797
04-28-2000
Sharon K. Mitchell, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Sharon K. Mitchell, )
Complainant, )
)
v. )
) Appeal No. 01A00797
Togo D. West, Jr., ) Agency No. 99-2883
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On October 20, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to her 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. and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> The Commission accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
On May 27, 1999, complainant contacted the EEO office regarding claims
of discrimination. Informal efforts to resolve complainant's concerns
were unsuccessful. Accordingly, on June 29, 1999, complainant filed a
formal complaint.
The agency framed the claims as follows:
a. On or about February 1999 complainant was reassigned/detailed
through forced light duty status to perform duties outside her position
description as an EEG technician;
b. On or about May 1997, complainant received an admonishment;
c. On or about August 19, 1997 to present date outstanding, complainant
was subjected to discrimination with respect to her assignment of duties;
d. With respect to duty hours, complainant was taken off 10 hour days,
no date given;
e. In the summer of 1997, the agency failed to promote complainant;
f. Complainant was subjected to harassment since her EEO case in 1993;
g. Complainant's performance appraisal went from an Outstanding to
Average just prior to the new system;
h. In September 1998, complainant was reassigned;
i. Complainant was subjected to sexual harassment since 1993;
j. In September or October 1997, complainant received a proposed
termination;
k. In 1996 and 1997, there was a lack of training; and,
l. From August 1997 to present, complainant was discriminated against
with respect to her working conditions.
On September 30, 1999, the agency issued a FAD dismissing the complaint
for untimely counselor contact. The agency determined that the most
recent incident for which a date was specifically identified occurred
between February 1 and February 28, 1999, at least 88 days prior to her
counselor contact. The agency noted that when complainant was asked
why she did not contact the EEO office earlier, complainant stated that
her claims were �ongoing�. As a result of complainant's statement, the
agency also conducted a continuing violation analysis. The FAD found
no continuing violation, determining that none of complainant's claims
were timely and that they were not interrelated.
The agency also referred complainant to an EEO Counselor on three
matters that complainant raised in an amended complaint. These matters
addressed walls that were partially painted in complainant's room and left
unfinished; schedule changes in an EEO hearing that caused complainant's
representative to withdraw his representation of her; and the agency's
purported failure to assign complainant to a work area after two agency
employees recently resigned.
On appeal, complainant contends that she is appealing the FAD on the
basis that the EEOC has �already accepted that my EEO problems are in fact
�on-going'.� According to complainant, since she knows the discrimination
will continue, she believes it is more efficient and less stressful to
file her �on-going� complaints �after there is an accumulation.�
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should 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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
In the instant case, the agency determined that all of complainant's
claims were untimely raised, and that they are not part of a continuing
violation.
The Commission has held that the time requirement for contacting
an EEO Counselor can be waived as to certain allegation within a
complaint when the complainant alleges a continuing violation, that is,
a series of related or discriminatory acts, or the maintenance of a
discriminatory system or policy before and during the filing period.
See McGiven v. USPS, EEOC Request No. 05901150 (December 28, 1990).
If one or more of the acts falls within the forty-five day period for
contacting an EEO Counselor, the complaint is timely with regard to
all that constitute a continuing violation. See Valentino v. USPS, 674
F.2d 56, 65 (D.C. Cir. 1982); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (September 21, 1990). A determination of whether
a series of discrete acts constitutes a continuing violation depends
on the interrelatedness of the past and present acts. Berry v. Board
of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983). It is necessary
to determine whether the acts are related by a common nexus or theme.
See Milton v. Weinberger, 645 F.2d 1070 (D.C. Cir. 1981).
Based on a review of the record, we find that complainant did not timely
raise with the EEO counselor any instance of discrimination. In its final
decision, the agency noted that some of the claims raised by complainant
purportedly spanned several years preceding the initial EEO Counselor
contact until �the present.� However, the Commission determines that the
claims for which complainant has provided specific identifiable dates of
discrimination occurred more than forty-five days prior to her initial
EEO Counselor contact in May 1999. The record therefore reflects that
none of the matters raised in the instant complaint were the subject of
timely EEO counseling.
Moreover, assuming arguendo, that some of complainant's claims
occurred within forty-five days of the initial EEO contact date,
complainant's untimely claims would nevertheless have failed to be
part of a continuing violation. In some instances, the EEO contact
was years after the alleged incident. Complainant knew or should
have had a reasonable suspicion that she was the victim of unlawful
discrimination at the time the alleged incidents occurred. While having
a reasonable suspicion of discrimination does not preclude acceptance
of the overall claim of ongoing discrimination, in the instant case,
complainant acknowledged on appeal that because she anticipates
ongoing incidents of discrimination, she finds it more expedient and
less stressful to pursue the EEO complaint process �after there is an
accumulation.� See Howard-Grayson v. USPS, EEOC Request No. 05900160
(December 3, 1999). The Commission, moreover, notes that complainant
previously acknowledged that she took no immediate action after she
suspected discrimination in a prior complaint. Mitchell v. USPS,
EEOC Request No. 05960656 (January 5, 1998).
Finally, the Commission determines that the agency properly referred
complainant to an EEO Counselor for the three additional claims raised.
The matters contained in the three amended claims were not raised with an
EEO Counselor and are not like or related to matter for which complainant
sought EEO counseling.
Accordingly, the agency's decision dismissing the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 28, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.