01986571_r
10-06-1999
Shirley A. Perez, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Shirley A. Perez, )
Appellant, )
)
v. ) Appeal No. 01986571
) Agency No. NCN-98-HQs-A040
)
Daniel S. Goldin, )
Administrator, )
National Aeronautics and )
Space Administration, )
Agency. )
______________________________)
DECISION
On August 29, 1998, appellant filed a timely appeal of an August 6, 1998
final agency decision, which was received by appellant on August 14, 1998,
dismissing her complaint, pursuant to 29 C.F.R. ��1614.107(a) and (b),
for failure to state a claim and due to untimely EEO Counselor contact.
In its final decision, the agency identified the allegations
of appellant's May 22, 1998 complaint as whether appellant was
discriminated against when: (1) she was not promoted to a GS-15 level
position while others within her code received promotions in June 1997;
(2) she received an inaccurate, vague, and biased desk audit in April
1997, which determined that her position was properly classified at the
GS-14 level; and (3) the agency Human Resources Management Division
maintained a policy of condoning discriminatory personnel practices
throughout the agency. The agency stated that the alleged incidents of
allegations (1) and (2) occurred in April and June 1997, but appellant
did not contact an EEO Counselor until April 1, 1998, which was beyond
the 45-day time limit set by the regulations. The agency also stated
that these allegations did not constitute a continuing violation since
there was no discriminatory act which fell within the 45-day time limit.
The agency indicated that allegation (3) involved a general allegation
of employment discrimination which purportedly affected a group or class
of employees; thus, it failed to state a claim.<1>
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
Upon review, we find that the incidents raised in allegations (1) and (2)
occurred in and before June 1997. The EEO Counselor's Report indicates
that appellant, a Resource Management Officer, GS-14, did not contact
an EEO Counselor in a timely manner because �it bothered [her] to file
an EEO complaint against the people that she worked with on a day-to-day
basis.� Further, on appeal, appellant contends that she unsuccessfully
tried to resolve the matters within the agency. The Commission, however,
has held that the internal appeal of an agency action does not toll the
running of EEO time limitations. See Hosford v. Veterans Administration,
EEOC Request No. 05890038 (June 9, 1989). Furthermore, the Commission
has held that all appellants must act with due diligence in the pursuit
of their claims or the doctrine of laches may be applied. The doctrine
of laches is an equitable remedy under which an individual's failure
to diligently pursue their actions could bar their claim. See O'Dell
v. Department of Health and Human Services, EEOC Request No. 05901130
(December 27, 1990). Based on the foregoing, we find that appellant
failed to present adequate justification to warrant an extension of the
applicable time limit for contacting an EEO Counselor pursuant to 29
C.F.R. �1614.105(a)(2).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
In order to establish standing initially under 29 C.F.R. �1614.103, a
complainant must be either an employee or an applicant for employment of
the agency against which the allegations of discrimination are raised.
In addition, the allegations must concern an employment policy or
practice which affects the individual in his/her capacity as an employee
or applicant for employment. The agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he/she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age, or disability. 29 C.F.R. ��1614.103
and .106(a). The Commission's Federal sector case precedent has long
defined an �aggrieved employee� as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Upon review, we find that allegation (3) involves a generalized
grievance shared substantially by all agency employees, i.e., by
alleged discriminatory personnel practices on the part of the agency.
The U.S. Supreme Court has noted that a generalized grievance shared
by all or a substantially large class of individuals is not sufficient
to establish standing. Warth v. Seldin, 422 U.S. 490 (1975). Since
appellant did not identify any specific personal harm affecting her
employment, she failed to state a claim.
With regard to appellant's claim for a continuing violation, it is noted
that since appellant failed to properly raise any allegation which
fell within the 45-day time period for contacting an EEO Counselor,
the complaint did not constitute a continuing violation. See McGivern
v. United States Postal Service, EEOC Request No. 05901150 (December 28,
1990); Starr v. United States Postal Service, EEOC Appeal No. 01890412
(April 6, 1989).
Accordingly, the agency's final decision is hereby AFFIRMED.
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 (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. 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 (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 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1In its final decision, the agency advised appellant that she may contact
an EEO Counselor if she wishes to pursue a class complaint on this matter.