01982167
10-29-1998
Susan Molchan, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Susan Molchan, )
Appellant, )
)
v. ) Appeal No. 01982167
) Agency No. NIMHEO970062
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
On January 29, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated January 7, 1998, pertaining
to 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. In her complaint, appellant alleged that she was subjected to
discrimination on the basis of sex (female) when:
Appellant was not given equitable pay and resources; she was denied
the opportunity to serve in the position of Ward Administrator and/or
Unit Chief; and she was not "grandfathered in" to the tenure track,
resulting in the termination of her appointment as Senior Investigator,
CO-5, in the Geriatric Psychiatry Branch on June 30, 1996;
On or about June 1996, appellant's supervisor verbally admonished
appellant after she told him that she should file an EEO complaint;
On two occasions between 1994 and June 30, 1996, appellant's supervisor
diagnosed appellant as having paranoia and depression;
In October 1996, appellant was not selected for a tenure track position
in the Section on Geriatric Psychiatry, Laboratory of Clinical Science;
In February 1997, appellant was not selected for a tenure track position
in the Mood, Anxiety, and Personality Disorder Research Branch; and
In April 11, 1997, appellant was not selected for a tenure track position
in the Section on Geriatric Psychiatry, Laboratory of Clinical Science.
The record indicates that appellant alleged that the foregoing incidents
created a pattern of ongoing discrimination.
On January 7, 1998, the agency issued a final decision accepting
allegation (6) for investigation and dismissing allegations (1) through
(5), pursuant to 29 C.F.R. �1614.107(b), for failure to initiate
contact with an EEO Counselor in a timely manner, and, alternatively,
allegations (2) and (3), pursuant to 29 C.F.R. �1614.107(a), for failure
to state a claim. The agency determined that the events identified
in allegations (1) through (5) occurred more than forty-five (45) days
from appellant's May 22, 1997 initial EEO Counselor contact, and were,
therefore, untimely. In the alternative, the agency determined that
appellant was not aggrieved as a result of the incidents identified in
allegations (2) and (3) because they concerned remarks or comments by
her supervisor which were unaccompanied by concrete action.
On appeal, appellant contends that the agency erred by treating her
allegations separately, and argues instead that the agency should
have addressed her allegations as comprising a continuing pattern of
discrimination based on sex.
In response, the agency asserts that appellant's allegations do not
establish a continuing violation because the incidents appellant
identified are discrete, separate acts which should have triggered
appellant's awareness to assert her rights. Additionally, the agency
argues that appellant had a reasonable suspicion of discrimination well
before she initiated EEO Counselor contact.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
It is well-settled that where, as here, there is an issue of timeliness,
"[a]n agency always bears the burden of obtaining sufficient information
to support a reasoned determination as to timeliness." Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).
Moreover, where, as here, a complainant alleges recurring incidents of
harassment, "an agency is obligated to initiate an inquiry into whether
any allegations untimely raised fall within the ambit of the continuing
violation theory." Guy v. Department of Energy, EEOC Request No. 05930703
(December 16, 1993) (citing Williams). As the Commission further held in
Williams, where an agency's final decision fails to address the issue of
continuing violation, the complaint "must be remanded for consideration
of this question and issuance of a new final agency decision making a
specific determination under the continuing violation theory." However,
here, where the agency addressed appellant's continuing violation claim
on appeal, it is unnecessary to remand the complaint.
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. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989).
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).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, 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. Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
In the instant case, we find that appellant failed to establish a
continuing violation. Appellant acknowledges that she suspected
discrimination as evidenced by the fact that she suggested to
her supervisor, prior to her not being selected for the tenure
track positions, that she should file an EEO complaint alleging sex
discrimination. Moreover, the non-selections identified in allegations
(4) and (5) have the degree of permanence that should have triggered
appellant's duty to assert her EEO rights. See Anvari v. Department of
Health and Human Services, EEOC Request No. 05930157 (June 17, 1993);
Jackson v. U.S. Air Force, EEOC Request No. 05950780 (June 27, 1997).
Based on the foregoing, we find that the agency properly dismissed
allegations (1) through (5) for untimely EEO Counselor contact.<1>
Accordingly, the agency's final decision 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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 29, 1998
____________________________
DATE Ronnie Blumenthal, Director
1Since we are affirming the agency's dismissal of allegations
(2) and (3) on the grounds of untimely EEO Counselor contact, we
will not address the agency's alternative grounds for dismissal,
i.e., that they failed to state a claim.