01974567
10-30-1998
Harry A. Derderian, Appellant, v. Joseph D. Duffey, Director, United States Information Agency, Agency.
Harry A. Derderian v. United States Information Agency
01974567
October 30, 1998
Harry A. Derderian, )
Appellant, )
)
v. ) Appeal No. 01974567
) Agency No. OCR-96-17
Joseph D. Duffey, )
Director, )
United States Information Agency, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged 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 (ADEA), as amended, 29 U.S.C. �621 et seq. The appeal is
accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed as untimely
certain allegations of appellant's complaint.
BACKGROUND
Appellant, a Project Manager, GM-14, first contacted an EEO Counselor
on November 1, 1995. The sole issue raised by appellant at that time
pertained to a performance appraisal received in mid-October 1995. On May
2, 1996, appellant filed a formal EEO complaint which raised several
issues in addition to the performance appraisal: several non-selections
which occurred in 1991-1993; the denial of career-enhancing opportunities
in 1991-1992; and comments made by a supervisor in 1993 (appellant states
on appeal that this allegation was since withdrawn). The agency referred
appellant back to the EEO Counselor to discuss the additional matters.
The record reflects that when the EEO Counselor queried appellant with
regard to the amount of time which had elapsed since the additional
incidents had occurred, appellant indicated merely that he "wanted to
show a pattern." By final agency decision (FAD) dated April 18, 1997, the
agency accepted for investigation the allegation regarding the performance
appraisal, but rejected the remaining allegations as untimely. The agency
noted that the remaining allegations were separate and distinct acts from
the performance appraisal, and therefore did not constitute a continuing
violation. It is from this decision that appellant now appeals.
ANALYSIS AND FINDINGS
The Commission's regulations require that complaints of discrimination
be brought to the attention of 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.
29 C.F.R. �1614.105(a)(1). The Commission has adopted a "reasonable
suspicion" standard, as opposed to a "supportive facts" standard,
to determine when the 45-day limitation period is triggered. See Ball
v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period is not triggered until a complainant reasonably
suspects discrimination, but before all of the facts that support a
charge of discrimination have become apparent.
One circumstance under which the time limitation may be waived is if the
otherwise untimely allegation is part of a "continuing violation," i.e.,
a related series of discriminatory acts, at least one of which occurred
during the 45 days prior to the initial counselor contact. In order
to present a continuing violation, appellant must show "a series of
related acts, one or more of which falls within the limitations period."
United Airlines, Inc., v. Evans, 431 U.S. 553, 558 (1977); Valentino
v. United States Postal Service, 674 F.2d 56 (D.C. Cir. 1982). Appellant
must also establish that the various acts complained of are sufficiently
interrelated by a common nexus so as to constitute a continuing violation.
See Milton v. Weinberger, 645 F.2d 1070 (D.C. Cir. 1981).
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); 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). 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.
Scott v. Claytor, 469 F. Supp. 22, 26 (D. D.C. 1978).
In determining whether a continuing violation exists, the Commission
has relied on the decision in Berry, wherein the court set forth
three relevant factors: whether the alleged acts involve the same
type of discrimination; whether the alleged acts are recurring (e.g.,
a biweekly paycheck) or more in the nature of an isolated work assignment
or employment decision; and whether the act has the degree of permanence
which should trigger an employee's awareness of and duty to assert
his or her rights, in other words, whether the act should indicate 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. Berry, 715 F.2d at 981. Incidents that are
sufficiently distinct to trigger the running of the limitations period do
not constitute continuing violations. See, e.g., Miller v. Shawmut Bank,
726 F. Supp. 337, 341 (D. Mass. 1989); Cogen v. Milton Bradley Co./Hasbro
Inc., 449 Empl. Prac. Dec. (CCH) �38,894 (D. Mass. 1989). In Cogen, the
court rejected the plaintiff's attempt to apply the continuing violation
theory to, among other allegations, an assignment issue. The court stated
that "discrete acts of discrimination taking place at identifiable points
in time" are not continuing violations for the purpose of extending the
limitations period. Id. at 58,757; see also Edinboro v. Department
of Health and Human Services, 704 F, Supp. 364, 367 (S.D. N.Y. 1988)
(demotion not a continuing violation).
In this case, the Commission finds that the non-selections and denial of
career-enhancing opportunities, which occurred in the period 1991-1993,
were separate and distinct events from the performance appraisal received
in 1995, and had the degree of permanence which should have triggered
appellant's awareness to assert his rights. The events therefore do
not constitute a continuing violation. Further, although solicited to
do so, appellant provided no information upon which a waiver of the time
limitation might otherwise be granted. Accordingly, dismissal of these
allegations as untimely was proper.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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. �l6l4.604(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. 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:
Oct. 30, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations