01982466
04-06-1999
Shirley F. Harris, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Shirley F. Harris v. Department of the Treasury
01982466
April 6, 1999
Shirley F. Harris, )
Appellant, )
)
)
v. ) Appeal No. 01982466
) Agency No. 98-3026
)
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her 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. The final agency decision was received by
appellant on January 12, 1998. The appeal was postmarked on February
6, 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.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed allegation
(2) due to untimely EEO Counselor contact and allegation (3) for failure
to bring the matter to the attention of an EEO Counselor.
BACKGROUND
The record indicates that on September 19, 1997, appellant, a Revenue
Agent, GS-12 contacted an EEO Counselor alleging that on September
8, 1997, she was not selected to a Group Manager, GS-13 position.
Appellant also indicated that in 1992, she applied but was not selected
for a Management Trainee, GS-13 position. Unable to resolve the matters
informally, appellant filed a formal complaint dated November 6, 1997,
alleging discrimination based on race (Black) and in reprisal for
prior EEO activity when she was continuously denied a promotion to a
GS-13 level position since 1992. Specifically, appellant alleged that:
(1) on September 14, 1997, she was informed that a Hispanic male was
promoted to the Group Manager position; (2) in October 1992, she applied
but was not selected for the Management Trainee position in Taxpayer
Service, instead, a white female was selected for the position; and (3)
she was denied assignments to large/higher grade cases and an Acting
Group Management position. Appellant also indicated that in 1995,
a white male was promoted to a GS-13 level position.
On January 8, 1998, the agency issued a final decision dismissing
allegation (2) due to untimely EEO Counselor contact and allegation
(3) for failure to bring the matter to attention of an EEO Counselor.
With regard to allegation (2), the agency stated that although
appellant indicated that she became aware of the alleged incident in
September 1997, under the "reasonable suspicion" standard, appellant
knew or suspected the alleged discrimination in 1992 and/or 1995, when
white coworkers were selected and/or promoted to a GS-13 level position
and she was not. The agency also indicated that appellant failed to
establish a continuing violation with regard to the incident since
the 1997 and 1992 nonselections were not related acts which occurred 5
years apart. With regard to allegation (3), the agency stated that the
EEO Counselor's Report indicated that appellant did not bring the matter
to the attention of the EEO Counselor. The agency accepted allegation
(1) for investigation.
On appeal, appellant contends that the 1997 and 1992 nonselections are
interrelated since in 1992, she was informed that she was not selected
for the 1992 position due to her limited experience in managing programs,
but in 1997, she learned that the selectee for the 1997 position had
only limited experience in managing programs.
In response, the agency indicates that different selecting officials
were involved for the 1992 and 1997 selections.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
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).
The record indicates that allegation (2) involved appellant's nonselection
to a Management Trainee, GS-13 position in 1992, and she contacted an
EEO Counselor on September 19, 1997, which was beyond the 45-day time
limit set by the regulations. The agency accepted allegation (1) which
involved appellant's nonselection to a Group Manager, GS-13 position in
1997, as timely. Upon review, we find that the alleged discriminatory
incidents in allegations (1) and (2) involved two isolated and separate
personnel actions, i.e., two nonselections which occurred in 1997 and
1992, and they do not constitute a series of related acts. The agency
also indicates on appeal that different selecting officials were involved
for those selections. See Trapani v. Central Intelligence Agency,
EEOC Request No. 05940037 (November 10, 1994) (no continuing violation
found where the incidents complained of were all of a different nature
and that they involved different agency officials).
Furthermore, it is important, in determining whether a claim for a
continuing violation is stated, to consider whether an appellant had prior
knowledge or suspicion of discrimination and the effect of this knowledge.
See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33,
921 F.2d 396 (1st Cir. 1990) (plaintiff who believed he had been subjected
to discrimination had an obligation to file promptly with the EEOC or
lose his claim, as distinguished from the situation where a plaintiff
is unable to appreciate that he is being discriminated against until he
has lived through a series of acts and is thereby able to perceive the
overall discriminatory pattern). In the present case, appellant failed
to establish a continuing violation and she failed to show that she
was unaware of the alleged discrimination until September 1997. In her
complaint, appellant indicated that she knew that a white individual was
selected for the Management Trainee position in 1992, and that another
white individual was promoted to a GS-13 level position in 1995, and she
was not. Thus, we find that appellant knew or suspected discrimination
in 1992, or the latest in 1995, concerning the alleged 1992 nonselection.
Since appellant failed to present adequate justification for an extension
of the applicable time limit, we find that her EEO contact regarding
allegation (2) was untimely.
EEOC Regulation 29 C.F.R. �1614.107(b) provides, in part, that the agency
shall dismiss a complaint or a portion of a complaint that raises a
matter that has not been brought to the attention of a Counselor and is
not like or related to a matter that has been brought to the attention
of a Counselor.
Allegation (3) involved the denial of assignments to large/higher grade
cases and an Acting Group Management position. According to the EEO
Counselor's Report, appellant did not bring the subject allegation to the
attention of the EEO Counselor. Furthermore, we find that the subject
allegation is not like or related to the nonselection allegations that
had been brought to the attention of the EEO Counselor.
CONCLUSION
The agency's decision to dismiss allegation (2) due to untimely EEO
Counselor contact and allegation (3) for failure to bring the matter to
the attention of an EEO Counselor 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:
April 6, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations