01976559
10-19-1998
Ming-Chiang Li, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Ming-Chiang Li, )
Appellant, )
)
v. ) Appeal No. 01976559
) Agency No. 97-00173-007
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
On September 2, 1997, appellant filed a timely appeal with this Commission
from an August 11, 1997 final agency decision which dismissed his
complaint on the grounds of mootness and for failure to contact an EEO
Counselor in a timely manner.
In its final decision, the agency framed the allegations of the June
21, 1997 complaint as whether appellant was discriminated against on
the bases of race (Chinese/Asian), color (yellow), national origin
(Chinese), age (June 18, 1935), sex (male), and in reprisal for prior
EEO complaints when he was barred by the National Research Laboratory
(NRL): (1) from accessing patent policies; (2) from accessing personal
security information; (3) from accessing information requested during
discovery; and (4) from accessing documents from projects within the
Tactical Electronic Warfare (TEW) Division.
Regarding allegation (1), the agency stated in its final decision that
the allegation was properly dismissed for mootness because the effects
of the alleged discrimination were completely and irrevocably eradicated
and that there was no reasonable expectation that the alleged violation
would recur. The agency noted that appellant made an oral request for
the information; that he was asked to place his request in writing; that
after he did so, his request was processed as a Freedom of Information
Act request; and that on May 22, 1997, the requested information was
forwarded to appellant. Regarding allegations (2) and (4), the agency
stated that appellant resigned from the agency on October 31, 1994 and
did not contact an EEO Counselor until at least two and a half years
after the alleged discrimination. Regarding allegation (3), the agency
indicated that appellant did not initiate EEO contact until eight months
after the alleged discriminatory event. In denying the allegations
on untimeliness grounds, the agency also stated that the incidents did
not constitute a continuing violation because each allegation involved
a different office or responsible management official; each incident
was an isolated event and had a degree of permanence which should have
triggered an awareness on the part of appellant to assert his rights;
that each allegation involved different documents; and that there was
no common nexus between allegation (1), which the agency stated was
timely raised, and the remainder of the allegations. The agency also
noted that appellant failed to establish that he was unaware that he
was discriminated against when the alleged incidents occurred.
Failure to state a claim
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103
or �1614.106(a).
As an initial matter, the Commission determines that allegation (3)
is more appropriately dismissed for failure to state a processable
claim. Allegation (3) concerns the processing of prior EEO complaints.
The Commission has held that an allegation which relates to the processing
of a previously filed complaint does not state an independent allegation
of employment discrimination. See Kleinman v. U. S. Postal Service,
EEOC Appeal No. 05940579 (September 22, 1994).
Moreover, it appears that the allegation constitutes a collateral attack
on matters concerning discovery in other EEO complaints and in another
EEO proceeding. In this regard, the Counselor's Report contains an Order
issued by the EEOC Administrative Judge with regard to several motions
filed by appellant in Agency No. 94-00173-008 to compel discovery and for
videotaped depositions. Therein, the Administrative Judge ordered that
all discovery cease and denied appellant's motions to compel discovery.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. A collateral
attack involves a challenge to another forum's proceeding, i.e., the
grievance process, the EEO process in a separate case, the unemployment
compensation process, the workers' compensation process, the tort claims
process, and so forth. Lau v. National Credit Union Administration,
EEOC Request No. 05950037 (March 18, 1996). Accordingly, to the extent
that appellant is contesting the Order of the EEOC Administrative Judge
regarding discovery in Agency No. 94-00173-008 or discovery requests
in other complaints, allegation (3) constitutes a collateral attack
and, as such, fails to state a claim. Allegation (3) is more properly
raised within the context of the prior matters, and, where appropriate,
on an appeal, if any, from a final agency decision pertaining to the
prior matters.
Mootness
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant's complaint are moot,
it must be ascertained (1) if it can be said with assurance that there
is no reasonable expectation that the alleged violation will recur, and
(2) if the interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation. See County of Los
Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist,
no relief is available and no need for a determination of the rights of
the parties is presented.
We find that the two conditions for determining mootness have been
satisfied and that, therefore, allegation (1) was properly dismissed.
The record reveals that in a March 13, 1997 letter, appellant requested
that the NRL provide him with documents on matters related to patent
policies at the NRL, including NRL Instruction 5870.3; 37 C.F.R. Ch IV,
Part 501; Technology Transfer Act of 1986; and Executive Order 10096
and 10930. In a May 22, 1997 letter, the agency stated that it had
processed appellant's request as a FOIA request and that it was enclosing
the four documents requested. The documents are part of the record and
appellant does not dispute receipt of the requested documents.
Untimely EEO contact
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with a 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) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. 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 limitation
period is not triggered until a complainant should reasonably suspect
discrimination, but before all the facts that would support a charge of
discrimination have become apparent.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. Although time limitations are subject to waiver,
estoppel and equitable tolling, complainants are required to act with due
diligence in pursuit of their claims. See Sapp v. U.S. Postal Service,
EEOC Request No. 05950666 (May 31, 1996); Jenkins v. Department of the
Army; EEOC Request No. 05940721 (January 26, 1996); O'Dell v. Department
of Health and Human Services, EEOC Request No. 05901130 (December 27,
1990).
The Commission has also 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 McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990). Where a complainant
alleges recurring incidents of discrimination, the agency is obligated
to initiate an inquiry into whether any allegations untimely raised
fall within the ambit of the continuing violation theory. See Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).
In determining whether a continuing violation is present, it is important
to consider whether appellant had prior knowledge or suspicion of
discrimination. See Sabree v. United Brotherhood of Carpenters and
Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990). It is necessary to
distinguish between appellants who believed they had been subjected to
discrimination, and therefore had the obligation to file promptly or lose
their claims, versus appellants who are unable to appreciate that they
are being discriminated against until they have lived through a series of
acts and are thereby able to perceive the overall discriminatory pattern.
See Hagen v. Department of Veterans Affairs, EEOC Request No. 05920709
(January 7, 1993).
Regarding allegations (2) and (4), the Counselor's Report reveals
that appellant first contacted an EEO counselor on April 17, 1997.
Appellant does not dispute the agency's contention that allegations (2)
and (4) occurred more than 45 days prior to his EEO Counselor contact.
Appellant asserts, however, that allegations (2) and (4) constitute part
of a continuing violation and a policy of discrimination by the agency to
bar him access to requested information. Appellant further asserts that
because the most recent denial of a request for information occurred on
March 13, 1997, i.e., allegation (1), Counselor contact in April 1997,
was timely as to allegations (2) and (4).
Upon review, we find that allegations (2) and (4) were properly dismissed.
The Counselor's Report reflects that appellant requested the information
during his employment with the agency and that his requests were denied.
Appellant resigned from the agency in October 1994. Therefore,
his contact in April 1997, was two and a half years later. Moreover,
appellant himself states on appeal, and the record reveals, that appellant
filed several EEO complaints beginning in 1990, and that appellant
alleged that because of the hostile environment created because of the
retaliatory actions of the agency, he was forced to resign. We find,
therefore, that appellant had a reasonable suspicion of discrimination
long before his April 17, 1997 Counselor contact. Because appellant
had a reasonable suspicion that he was being discriminated against at
least by the time of his allegedly forced resignation, the continuing
violation theory is not applicable. Further, appellant was required to
act with due diligence in pursuit of his claims.
Consistent with our discussion herein, the agency's dismissal of
allegations (1) through (4) is AFFIRMED for the reasons set forth herein.
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:
Oct. 19, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations