05991076
06-14-2000
Thomas J. Terrell, Jr., Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Thomas J. Terrell, Jr. v. Department of the Air Force
05991076
June 14, 2000
Thomas J. Terrell, Jr., )
Complainant, )
) Request No. 05991076
v. ) Appeal No. 01983951
) Agency No. 9VIM98129
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On July 6, 1999, Thomas J. Terrell, Jr. (complainant) initiated a
request to the Equal Employment Opportunity Commission (Commission)
to reconsider the decision in Thomas J. Terrell, Jr. v. Department
of the Air Force, EEOC Appeal No. 01983951 (June 2, 1999).<1> EEOC
Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision where the requesting
party demonstrates that: (1) the appellate decision involved a clearly
erroneous interpretation of material fact or law; or (2) the appellate
decision will have a substantial impact on the policies, practices,
or operations of the agency. See 64 Fed. Reg. 37,644, 37,654 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)).
For the reasons set forth herein, complainant's request is granted.
BACKGROUND
On February 9, 1998, complainant contacted an EEO counselor alleging
that since October 1996, complainant acted as a supervisor but was not
paid as such and then, on January 5, 1998, complainant was informed
that he was not selected for a promotion to a supervisory position
even though he was the top ranked individual. On February 26, 1998,
the EEO counselor defined complainant's claims as on a continuing basis
(1) from December 12, 1992 until the present complainant was detailed
to a supervisory position until March 3, 1993 and did not receive the
higher pay; (2) from March 3, 1993 through August 4, 1993, complainant
was detailed to a supervisory position but did not receive the higher pay;
(3) on January 5, 1998, complainant was not selected for a promotion.<2>
Complainant was informed to advise the EEO office if he did not agree
with the identified issues within five days. The record indicates that
complainant contacted the EEO counselor on March 5, 1998, to inform him
that the dates on the letter did not seem familiar. Complainant indicated
that the dates that concerned his complaint were October 1996 through
January 1998. Complainant filed his formal complaint dated March 13,
1998, which referenced the EEO counselor's report for the description
of the alleged discriminatory incidents.
On March 26, 1998, the agency issued a final decision dismissing claims
(1) and (2) as defined by the EEO counselor for contacting the EEO
office in an untimely manner. The agency accepted the remaining claim
for investigation.<3> Complainant appealed the agency's dismissal to
the Commission alleging that the agency improperly framed complainant's
claims. The previous decision issued on June 2, 1999, stated that the
claim pertained to events that occurred from December 1992 through March
1993 and March 3, 1993 through August 4, 1993. The previous decision also
found that complainant did not contact the EEO counselor until February
9, 1998, beyond the forty-five (45) day limitation. Accordingly, the
previous decision found that the agency properly dismissed the claim
pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(2)).
In his request for reconsideration, complainant reiterates his argument
that the agency improperly framed his complaint. The record shows that
complainant received the Identification of Issues letter dated February
26, 1998, on March 2, 1998. Complainant responded to the letter on
March 5, 1998, within the five days specified by the EEO counselor.
ANALYSIS AND FINDINGS
In light of complainant's request and upon review of the record, the
Commission finds that the final agency decision erroneously stated the
dates of the alleged incidents. The record clearly shows that after
receiving the complaint defined by the EEO counselor, complainant wrote
to the counselor providing him with the corrected dates for the alleged
incidents. He stated that the alleged discriminatory events occurred from
October 1996 through January 5, 1998, as opposed to the dates December
1992 through March 3, 1993 and March 3, 1993 through August 4, 1993,
as stated in the agency's final decision. Therefore, the Commission
must determine if complainant contacted the EEO counselor in a timely
manner regarding his claim of discrimination on a continuing basis from
October 1996 through January 5, 1998.
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply with
the applicable time limits contained in 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.105);
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.106); and � 1614.204(c), unless the
agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO 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 45 days of the effective date
of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the
agency or the Commission to extend the time limit if the complainant can
establish that he was not aware of the time limit; that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred; that despite due diligence, he was prevented
by circumstances beyond his control from contacting the EEO Counselor
within the time limit; or for other reasons considered sufficient by
the agency or Commission.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain claims 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 Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States
Postal Service, EEOC Request No. 05901150 (December 28, 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 of Louisiana State Univ.,
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, complainant 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 complainant.
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).
Upon review of the record, the Commission finds that complainant's claim
(1) constitutes a continuing violation. Initially, we find that the acts
alleged in claim (1) are interrelated to a common nexus, namely that he
had acted in a supervisory capacity but was not paid as such from October
1996, until another individual was selected for the supervisor position
on January 5, 1998. Further, we find that the events were recurring
because, during the relevant time period, complainant continuously worked
in a supervisor capacity and was not paid for such work. Finally, the
Commission finds that complainant's awareness of the permanence of the
agency's actions in this case was not brought into focus for him until
he was not selected for the supervisory position despite being ranked
the top candidate. Instead the agency selected a younger individual
for the position complainant had been performing since October 1996.
At the time of his nonselection, it became clear to complainant that
the agency had never intended to pay him at the higher rate because
of his age. Complainant contacted the EEO counselor within forty-five
(45) days of his nonselection. Accordingly, the Commission finds that
complainant contacted the EEO office regarding his claim of continuing
violation in a timely manner.<4>
Further, the Commission notes that when the agency defined complainant's
complaint, it fragmented his claim of age discrimination in an incorrect,
piecemeal manner. Rather, the complaint alleged that complainant was
subject to discrimination from October 1996 through January 1998, when
he acted as a supervisor without receiving the supervisor's pay because
the agency promised to select him for a supervisor's position when one
became available. When the first supervisor's position became available,
complainant was not selected for the position, even though he was the
top ranked individual. Therefore, we remand the instant issue so that
it shall be processed in accordance with the Order below. Further,
this issue shall be consolidated with complainant's other claim which
was remanded by the Commission in Terrell v. Department of the Air Force,
EEOC Appeal No. 01997277 pursuant to 64 Fed. Reg. 37,644, 37,661 (to be
codified and hereinafter referred to 29 C.F.R. � 1614.606).
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to GRANT the complainant's request.
The decision of the Commission in Appeal No. 01983951 (June 2, 1999)
and the final agency decision are REVERSED. There is no further right
of administrative appeal on the decision of the Commission on a Request
to Reconsider.
ORDER
The agency is ORDERED to process the remanded claim in the present
decision in accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.108).
Further, the agency shall consolidate this instant claim with the remanded
claim from EEOC Appeal No. 01997277 pursuant to 29 C.F.R. � 1614.606.
The agency shall acknowledge to the complainant that it has received
the remanded claims within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to complainant a copy
of the investigative file and also shall notify complainant of the
appropriate rights within one hundred fifty (150) calendar days of the
date this decision becomes final, unless the matter is otherwise resolved
prior to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (Z1199)
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:
June 14, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________ __________________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 The claims were based on the EEO counselor's meeting with complainant
on February 12, 1998, and their telephone conversation of February
26, 1998.
3 This claim is the subject of Appeal No. 01997277.
4 The Commission further notes that the agency is estopped from asserting
timeliness as a bar to this complaint. If the agency were permitted to
dismiss such a complaint for untimeliness, the agency would be able to
continue its discrimination in perpetuity with no remedy available to the
complainant. See Moller v. Department of Health and Human Services, EEOC
Request No. 05960505 (July 24, 1997) (regarding a claim of discrimination
raised under the Equal Pay Act); see also Robinson v. General Services
Administration, EEOC Request No. 05950558 (July 1, 1996) (finding that
the agency would be able to continue its discrimination in perpetuity
with no remedy available for the complainant if it can dismiss a claim
for untimeliness when it has allegedly failed to provide complainant
with equal pay for equal work on a continuing basis).