01982531
05-24-1999
Eugene J. Kaelin, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency
Eugene J. Kaelin v. Department of the Navy
01982531
May 24, 1999
Eugene J. Kaelin, )
Appellant, )
) Appeal No. 01982531
v. ) Agency No. 97-65888-057
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision 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 �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The final agency decision was
dated January 26, 1998. The appeal was postmarked February 11, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed several
allegations of appellant's complaint for untimely contact with an EEO
Counselor, and one allegation on the basis that it was moot.
BACKGROUND
Appellant filed a formal complaint of discrimination on August 27, 1997,
alleging discrimination on the bases of sex (male), mental disability
(bipolar disorder) and reprisal (prior EEO activity). He alleged fifteen
different allegations:
1) on June 8, 1997, he was not selected for a position to which he had
applied;
2) on June 25, 1997, his rights were violated when his supervisor asked
for medical information by issuing him a Request for Special Benefit as
a Result of a Medical Condition;
3) from 1992 through 1997, he was denied equitable overtime;
4) on October 8, 1997 he became aware that he had not been selected for
2 positions to which he had applied;
5) on April 14, 1986, he was not selected for a position to which he
had applied;
6) on July 21, 1986, he was not selected for a position to which he had
applied;
7) on August 31, 1987, he was not selected for a position to which he
had applied;
8) on August 31, 1987, he was not selected for another position to which
he had applied;
9) on June 13, 1988, he was not selected for a position to which he had
applied;
10) on July 11, 1988, he was not selected for a position to which he
had applied;
11) on September 26, 1988, he was not selected for a position to which
he had applied;
12) on September 26, 1988, he was not selected for a another position
to which he had applied;
13) on January 9, 1989, he was not selected for a position to which he
had applied;
14) on October 12, 1992, he was not selected for a position to which he
had applied;
15) on June 3, 1997, he was not selected for any of 19 positions to
which he had applied.
In its final agency decision, the agency accepted allegations 1 through 4
for further processing. It dismissed 10 of appellant's claims, 5 through
14, on the grounds that he had not timely contacted an EEO Counselor
about the alleged discrimination because more than 45 days had elapsed
between the times of non-selection for each position and June 27, 1997,
the day he first contacted an EEO Counselor. The agency also dismissed
allegation 15 on the basis that the claim was moot because the agency
had not actually made any selections for the positions in question when
appellant had filed his formal complaint. This appeal followed.
On appeal, appellant argues that allegations 5-14 "relate to the present
day case" and show a pattern of discrimination, in other words, that a
continuing violation exists. Appellant also argues that allegation 15 is
"now relevant" and is "now current," but he fails to provide any evidence
to show that a position for which he had applied had been filled and
that he had not been selected for it.
ANALYSIS AND FINDINGS
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 within 45 days of
the effective date of the personnel action. The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) for determining whether contact with an EEO Counselor is timely.
Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Under this standard, the regulatory limitations period "is not triggered
until complainant reasonably suspects discrimination, but before all
the facts that would support a charge of discrimination have become
apparent." Bracken v. U.S. Postal Service, EEOC Request No. 05900065
(March 29, 1990).
The Commission has held that the time requirement for contacting an EEO
Counselor can be waived as to certain allegations within a complaint when
the complainant alleges a continuing violation, that is, a series of
related discriminatory acts, one of which falls within the time period
for contacting an EEO Counselor. See McGivern v. USPS, EEOC Request
No. 05901150 (December 28, 1990). If one or more of the acts falls
within the 45-day period for contacting an EEO Counselor, the complaint
is timely with regard to all that constitute a continuing violation.
See Valentino v. USPS, 674 F.2d 56, 65 (D.C. Cir. 1982); Verkennes
v. Department of Defense, EEOC Request No. 05900700 (September 21, 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, 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). 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 the appellant. Scott v. Claytor, 469 F.Supp. 22,26
(D.D.C. 1978).
We note that the gap in time between the allegations that occurred in
1997 and the last previous incident argued by appellant to be part of
the continuing violation, October 12, 1992, is nearly 5 years. We find
that appellant has not established a continuing violation with respect
to the 10 allegations regarding his non-selection for positions to which
he had applied, allegations 5 through 14. Accordingly, the allegations
were properly dismissed by the agency for untimeliness.<1>
Although the agency dismissed allegation 15 on the basis that it
was moot, we find that the allegation more properly should have been
analyzed as to whether it failed to state a claim because the appellant
was not aggrieved. EEOC Regulation 29 C.F.R. �1614.107(a) provides
that an agency shall dismiss a complaint which fails to state a claim
pursuant to 29 C.F.R. �1614.103. An agency shall accept a complaint
from any aggrieved employee or applicant for employment who believes
that he or she has been discriminated against by that agency because
of race, color, religion, national origin, age or disabling condition.
29 C.F.R. �1614.103; �1614.106(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 (Apr. 21, 1994). To establish that
he is an "aggrieved employee" and therefore state a claim under the
regulations, a complainant must allege that he was injured in fact.
On appeal, the agency states that at the time appellant filed his formal
complaint, no selections had yet been made for any of the 19 positions
to which appellant had applied. Appellant had applied for these
positions through what the agency calls an "open continuous process,"
where an employee can file applications for positions even if there
are no openings for those positions at the time of the application.
When there is an opening, the agency is supposed to get referrals from
the applications on file. The agency argues that since none of the
19 positions had an opening that needed to be filled between June 3,
1997, when appellant filed his applications, and August 27, 1997, when
appellant filed his formal complaint, that this allegation is moot.
Because no selections for these positions had been made as of August
27, 1997, appellant had not suffered a harm or loss with respect to a
condition of his employment. The Commission finds that the appellant
has failed to state a claim because he was not aggrieved, and that this
allegation was properly dismissed.<2>
Accordingly, for the reasons stated above, the decision of the agency
was proper and 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:
May 24, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 However, appellant may raise these non-selections as background
evidence in support of his current claim of a failure to promote him
based on sex, disability and reprisal.
2 If, as of the date of receipt of this decision, selections have
been made for any of the positions in allegation 15 and appellant has
not been selected, appellant is advised that if he failed to seek EEO
counseling on the non-selection due to the pendency of this appeal,
he shall initiate contact with an EEO Counselor within 15 days after he
receives this decision. We advise the agency that if appellant seeks
EEO counseling regarding a non-selection encompassed by allegation 15
within the above 15 day period, the contact shall be deemed timely.