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