Wendall C. Waters, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 23, 1999
01992359 (E.E.O.C. Sep. 23, 1999)

01992359

09-23-1999

Wendall C. Waters, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Wendall C. Waters v. Department of the Navy

01992359

September 23, 1999

Wendall C. Waters, )

Appellant, )

) Appeal No. 01992359

v. ) Agency No. DON 99-62204-002

)

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision (FAD) concerning his 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 the Age Discrimination in

Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The appeal

is accepted in accordance with EEOC Order No. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed a portion

of appellant's complaint for untimely contact with an EEO Counselor.

BACKGROUND

Appellant filed a formal complaint on October 7, 1998, alleging

discrimination on the bases of race (Caucasian) and age (DOB: December

12, 1933) when:

1) on July 11, 1998, appellant's supervisor counseled appellant in

front of his co-workers for going to Twenty-nine Palms, California to

haul guns and told appellant that "Mr. Waters, you had better drop it,

or it's going to be unfavorable for you";

2) on July 11, 1998, appellant's supervisor told him that appellant was

not eligible to do "over the road runs" and that appellant could not

dispatch himself; and

3) appellant's supervisor did not stop a co-worker from harassing

appellant which ended when the co-worker retired on July 2, 1998.

In its FAD dated January 4, 1999, the agency accepted allegations (1) and

(2) but dismissed allegation (3). The agency found that appellant should

have contacted an EEO Counselor by August 17, 1998, the expiration of the

forty-five (45) day limit. Appellant initiated EEO contact on August 20,

1998, therefore, the agency concluded that appellant contacted the EEO

Office three days past the deadline. The FAD also found that allegation

(3) was not part of a continuing violation for there was no nexus or theme

which connected this allegation with the accepted issues. Accordingly,

the agency dismissed allegation (3) pursuant to 29 C.F.R. �1614.107(a).

This appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in �1614.105, �1614.106 and

�1614.204(c), unless the agency extends the time limits in accordance

with �1614.604(c).

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within 45 days of

the date of the matter alleged to be discriminatory or, in the case of

a personnel action, within 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the

Commission to extend the time limit if the appellant can establish that

appellant was not aware of the time limit, that appellant did not know

and reasonably should not have known that the discriminatory matter

or personnel action occurred, that despite due diligence, appellant

was prevented by circumstances beyond his control from contacting the

EEO Counselor within the time limit, or for other reasons considered

sufficient by the agency or Commission.

The Commission has adopted a "reasonable suspicion" standard, as opposed

to a "supportive facts" standard, to determine when the limitation period

is triggered. See Ball v. United States Postal Service, EEOC Request

No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)

- the predecessor of 29 C.F.R. �1614.105(a)(1)).

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. McGivern v. United States Postal Service,

EEOC Request No. 05901150 (December 28, 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 of Louisiana State Univ.,

715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).

It is not sufficient to allege that the effects of past discrimination

have continued until the present. In Berry, the court set forth

three relevant factors. The first is whether the acts involved the

same type of discrimination. 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). The second factor is whether

the events were recurring or isolated incidents. Relevant to this

determination is whether an untimely discrete act had the degree of

permanence which should trigger an employee's awareness of and duty to

assert his or her rights or which should have indicated to the employee

that the continued existence of the adverse consequences of the act

is to be expected without being dependent on a continuing intent to

discriminate. The final factor in determining whether a claim for a

continuing violation is stated is prior knowledge. It is important

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); see also Sabree

v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d

396 (1st. Cir. 1990). Should these factors 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).

Upon review, we find that appellant has failed to establish a continuing

violation. Although appellant is claiming that the same supervisor was

involved in all the alleged discriminatory acts in appellant's complaint,

the dismissed allegation does not survive the degree of permanence

analysis. Appellant had been harassed by the co-worker which stopped

when the co-worker retired on July 2, 1998. At that time, appellant

knew that the supervisor's failure to protect him from this co-worker

would not recur. This should have triggered appellant's awareness of

his duty to assert his rights. Appellant contacted an EEO Counselor on

August 20, 1998, beyond the forty-five (45) day limit. Therefore, the

Commission finds that the agency was proper when it dismissed appellant

complaint for untimely EEO Contact, pursuant to 29 C.F.R. �1614.107(b).

CONCLUSION

Accordingly, the decision of the agency is 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:

Sept. 23, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations