01982650
03-12-1999
Sheila Smith, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration)) Agency.
Sheila Smith, )
Appellant, )
)
v. ) Appeal No. 01982650
) Agency No. 2972005
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
(Federal Aviation Administration))
Agency. )
_________________________________)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
concerning 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. The Commission hereby accepts the appeal in
accordance with EEOC Order No. 960, as amended.
Appellant alleges that she was discriminated against on the bases of
sex (female), and reprisal (prior EEO activity), when she was issued a
proposed disciplinary suspension on October 17, 1995. In its December 19,
1996, FAD, the agency dismissed this allegation on the grounds that it
was a proposed future action. In Smith v. Dept. of Transportation, EEOC
Request No. 01972430 (November 20, 1997), the Commission REMANDED this
allegation back to the agency with instructions to determine whether the
proposed suspension was implemented and to continue processing, merging
the two personnel actions, if appropriate.<1> In its January 12, 1998,
FAD, the agency states that a Decision Notice dated December 7, 1995,
implemented the October 17, 1995, proposed suspension, and the appellant
was suspended from January 9, 1996, to January 11, 1996. The agency then
dismissed this allegation pursuant to 29 C.F.R. �1614.105(a)(1), for
failure to make contact with an EEO counselor within 45 days after the
October 17, 1995, proposed suspension. A review of the record shows that
initial EEO counselor contact occurred on April 26, 1996. We note that
this allegation could have been dismissed as untimely in the December 19,
1996, FAD in addition to the grounds of it being a proposed future action.
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
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. USPS, EEOC Request No. 05880247 (July 6, 1988).
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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the EEO counselor
within the time limits, or for other reasons considered sufficient by
the agency or the Commission.
The agency contends that because initial EEO contact occurred on April
26, 1996, it is far more than 45 days after the October 17, 1995,
proposed suspension. We note that it is also far more than 45 days
after the January 9, 1996, effective date of appellant's suspension.
On appeal, the appellant argues that she did not suspect discrimination
regarding this suspension until April 26, 1996, when she received a
poor performance apprisal, noting that she then realized that she had
been a victim of a pattern of discrimination. She asks that all of
her allegations which were dismissed as untimely in the December 19,
1996, FAD be reinstated for this reason. Although we do not find that
appellant has set forth a sufficient justification, within the meaning
of the law and regulations cited above, to extend the time limits with
respect to the instant allegation, we nevertheless construe her statement
as a claim for a continuing violation.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO counselor. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989).
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), cert. denied, 479 U.S. 868 (1986). It is necessary
to determine whether the acts are interrelated by a common nexus or
theme. 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" challenged by appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D. D.C. 1978).
In examining appellant's allegations, we do not find that they are
sufficiently interrelated, or that there is a nexus between them and the
one allegation concerning denial of training opportunities which was
accepted for investigation by the agency pursuant to the EEOC's Order
in Smith, supra., as indicated in footnote 1. The instant allegation
concerned a suspension, a disciplinary matter, whereas the accepted
allegation deals with training opportunities. Moreover, the other
allegations deal with a variety of actions, and even if some could be
construed as related to the denial of training opportunities, taken
together, they do not reflect a theme or �pattern� of discrimination as
required by the law and regulations cited above.
Therefore, we find that the appellant has failed to make a claim of a
continuing violation and that the agency properly dismissed the allegation
on appeal for failure to make timely EEO counselor contact.
Accordingly, we AFFRIM the FAD.
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.
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.F.R.).
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:
March 12, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1In this decision, the Commission also affirmed the agency's dismissal
of four allegations for failure to make timely EEO counselor contact,
and one for failure to state a claim. The dismissal of a remaining
allegation , concerning denial of training opportunities, was reversed
and remanded to the agency for further investigation.