05991131
11-05-1999
Warren K. Specht, Appellant, v. J. Danzig, Secretary, Department of the Navy, Agency.
Warren K. Specht, )
Appellant, )
) Request No. 05991131
v. ) Appeal No. 01992902
) Agency No. DON-97-60530-008 Richard
J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION ON REQUEST TO RECONSIDER
On September 8, 1999, Warren Specht (hereinafter referred to as appellant)
timely initiated a request to the Equal Employment Opportunity Commission
(the Commission) to reconsider the decision in Warren Specht v. Department
of the Navy, EEOC Appeal No. 01992902 (August 10, 1999). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission 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 or regulation,
or material fact, or a misapplication of established policy, 29
C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
For the reasons set forth herein, appellant's request is granted.
A review of the record establishes that appellant filed his formal EEO
complaint of discrimination with the agency on July 6, 1997, alleging
that he had been discriminated against due to physical disabilities
(cataracts; knee injury, chronic back pain and arthritis) when: (1)
the agency continuously failed to promote him to the DT-3 level since
1989; and (2) the agency failed to provide reasonable accommodation for
his disabilities from August 1, 1996 and continuing. On December 17,
1998, the final agency decision (FAD) dismissed appellant's allegation
(1) due to untimely contact with an EEO Counselor. As a result, the
agency ordered an investigation into allegation (2) only.<1> Appellant
filed a timely appeal of the FAD on January 16, 1999, with a supporting
brief subsequently filed with the Commission and postmarked on February
18, 1999. However, the Commission found that appellant's appeal was
beyond the thirty (30) day time limit set by 29 C.F.R. �1614.604(c), and
appellant failed to submit justification to invoke waiver or equitable
tolling of the time limits for rights to file an appeal. Accordingly,
appellant's appeal was found to be untimely as dismissed. In his request
for reconsideration, appellant contends that the Commission erroneously
found that his appeal was filed in an untimely manner.
After review of the record, the Commission finds that appellant received
the agency's FAD on December 28, 1998 and filed his Form 573 with the
Commission on January 16, 1999. The form was postmarked on January 19,
1999 and received in the Office of Federal Operations on January 25,
1999. Based on the foregoing precedent and the facts of the present
matter, the Commission finds that appellant's appeal was timely.
29 C.F.R. �1614.604(c).
Having addressed the procedural dismissal of the appellant's appeal,
we shall proceed to address the dispositive issue as to whether the
agency properly dismissed appellant's allegation (1).
As stated, the FAD dismissed appellant's allegation (1) due to
untimely contact with the EEO Counselor. Appellant contends, however,
that allegation (1) should be considered a continuing violation, and
thus his contact with the EEO Counselor in May 1997 was not untimely.
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. 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 Reid v. Department
of Commerce, EEOC Request No. 05970705 (April 22, 1999).
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 of Louisiana State Univ.,
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. Dawson v. United States Postal Service,
EEOC Appeal No. 01944365 (April 5, 1996). 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. Berry, supra;
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, 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. Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
With regard to allegation (1), the Commission agrees with the FAD that
while appellant has provided documentation that he reasonably suspected
discrimination regarding his failures to be promoted to DT-3 between
1989 and 1994, he did not initiate contact with an EEO Counselor until
1993 and furthermore did not file an informal EEO complaint or otherwise
pursue taking concrete steps to utilize the EEO process until he filed
his formal complaint with the agency on June 23, 1997. As the evidence
supports a finding that appellant reasonably suspected discrimination
regarding his failures to be promoted between 1989 and 1994, even assuming
the theory of continuing violations is applicable, appellant was required
to pursue the EEO process following the acts of alleged discrimination,
but he failed to do so within the regulatory time limits.
Appellant has asserted in the request for reconsideration that his claim
was timely, as he did not suspect discrimination until May of 1997 due
to his supervisor's contradictory statements regarding his promotion.
However, the evidence clearly indicates that on the basis of his failure
to be promoted despite his qualifications, appellant had reasonable
suspicion of discrimination long before May of 1997, as evidenced
by his admitted initial contact with agency EEO Counselors in 1993.
Dawson, supra. We further find that the subsequent statements of
appellant's supervisor attributing the failure to promote appellant
to �upper management� were not contradictory and would have led a
reasonable person to suspect discrimination well before May of 1997.
As such, the Commission finds that appellant was required to initiate
contact with an EEO Counselor within forty-five (45) days of the alleged
discriminatory conduct between 1989 and 1994 but failed to do so, and
his subsequent formal complaint filed in June of 1997 was untimely on
this basis. Jackson, supra. Appellant's determination not to pursue
relief regarding his allegedly discriminatory failures to be promoted
as they occurred cannot be rewarded by permitting appellant to proceed
with his time-barred claim under the continuing violation theory. White
v. Department of the Air Force, EEOC Appeal No. 01976303 (May 28, 1998).
Accordingly, we find that appellant failed to timely raise allegation
(1) with an EEO Counselor.
After a review of the appellant's request for reconsideration, the
agency's response, the previous decision, and the entire record, the
Commission finds that appellant's request meets the criteria of 29
C.F.R. �1614.407(c), and it is the decision of the Commission to grant
appellant's request. The decision in EEOC Appeal No. 01992902 (August
10, 1999) is hereby REVERSED. However, the agency's FAD dismissing
appellant's allegation (1) for untimely contact with an EEO Counselor
is AFFIRMED. Since the merits of appellant's appeal are being considered
for the first time herein, the parties are provided an opportunity to
have the decision reconsidered by the Commission.
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 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. 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 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:
November 5, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The record establishes that appellant withdrew allegation (2) on
February 4, 1999. Agency Exhibit 11.