01990515
10-08-1999
Shirley A. Cleaves, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Shirley A. Cleaves, )
Appellant, )
)
v. )
) Appeal No. 01990515
Kenneth S. Apfel, ) Agency No. 980609SSA
Commissioner, )
Social Security Administration, )
Agency. )
________________________________)
DECISION
On October 21, 1998, appellant timely filed an appeal with this Commission
from a final agency decision (FAD), dated October 8, 1998, partially
dismissing her complaint for untimely counselor contact. The Commission
accepts the appellant's appeal in accordance with EEOC Order No. 960,
as amended.
On July 6, 1998, appellant contacted the EEO office regarding allegations
of discrimination based on age (59). Informal efforts to resolve
appellant's concerns were unsuccessful. Accordingly, appellant filed
a formal complaint on August 5, 1998. The FAD defined the allegations
as follows:
Appellant was not selected for the GS-7 Legal Assistant position,
which was advertised under vacancy announcement number (VAN) SSA-81-98;
Appellant was not selected for the GS-7 Legal Assistant position,
which was advertised under VAN OCA-10-94;
Appellant was not selected for the GS-7 Legal Assistant position,
which was advertised under VAN SSA-36-94; and,
Appellant was not selected for the GS-7 Legal Assistant position,
which was advertised under VAN SSA-165-97.
The agency accepted allegation 1 for investigation and
dismissed allegations 2, 3, and 4 pursuant to EEOC Regulation 29
C.F.R. �1614.107(b). Specifically, the FAD stated that the selections
at issue occurred between 1994 and 1997, thereby making appellant's
July 6, 1998 counselor contact well beyond the forty-five (45) day time
limitation. The agency also indicated that the dismissed allegations
did not constitute a continuing violation.
On appeal, appellant contends that the dismissed allegations are closely
related to allegation 1 and therefore should be accepted. In addition,
appellant states that she did not timely contact a counselor because at
the time of the rejections she was unaware of their discriminatory nature.
It was not until a pattern of rejection formed that appellant's suspicions
were raised. Appellant also indicates that she was unaware of the EEO
process and the forty-five (45) day time limit.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides 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 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.
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. See 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. See
Scott v. Claytor, 469 F.Supp. 22, 26 (D.D.C. 1978).
It is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33,
921 F.2d 396 (1st Cir. 1990). The Commission described Sabree as holding
that a plaintiff who believed he had been subjected to discrimination
had an obligation to file promptly with the EEOC or lose his claim, as
distinguished from the situation where a plaintiff is unable to appreciate
that s/he is being discriminated against until s/he experienced a series
of acts and thereby able to perceive the overall discriminatory pattern.
See Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709
(Jan. 7, 1993).
In the instant case, we find the agency improperly dismissed allegations
2, 3, and 4 for untimely counselor contact. Although the FAD sets forth
the elements of a continuing violation, the agency fails to conduct such
an inquiry into appellant's allegations. Such an evaluation would reveal
that, although under some circumstances promotions are considered discrete
actions which should trigger the appellant's suspicions, here appellant
reasonably did not suspect discrimination when she was first rejected
for promotion. We find appellant should not have �reasonably suspected�
the non-promotions as discriminatory until a pattern had developed.
In addition, the four allegations share the common nexus of all being
non-promotions for the same position of Legal Assistant. We note that
the agency neglected to determine whether a common theme existed, by
perhaps inquiring into whether the same officials or procedures were
used in all four allegations.
Further, appellant argues that until her most recent promotion denial
she was unaware of the forty-five (45) day time limitation. The agency
has not provided any evidence that appellant had actual or constructive
notice of the time limitations for contacting an EEO counselor.
The Commission has held that where there is an issue of timeliness,
the agency always bears the burden of obtaining sufficient information
to support a reasoned determination as to timeliness. See Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).
Here, we find the agency has not met its burden. Accordingly, we REVERSE
the agency's decision to dismiss allegations 2, 3, and 4. The complaint
is REMANDED to the agency
for further processing in accordance with this decision and the Order
below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action.
The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such 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. 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:
October 8, 1999
___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations