01981743
02-02-1999
Timothy A. Woodington, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Timothy A. Woodington v. Department of the Navy
01981743
February 2, 1999
Timothy A. Woodington, )
Appellant, )
)
v. ) Appeal No. 01981743
) Agency No. DON-98-00187-012
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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 December 23, 1997. The appeal was postmarked December 24,
1997. 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 a portion
of appellant's complaint for untimely contact with an Equal Employment
Opportunity (EEO) Counselor.
BACKGROUND
Appellant contacted an EEO counselor on August 22, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when (1) on June 23, 1997 and (2) on July 8,
1997, his supervisor retaliated against him when he came into a closed
door conference room while appellant was preparing his EEO case prior to
a pre-hearing conference call. Informal efforts to resolve appellant's
concerns were unsuccessful. Accordingly, on November 17, 1997, appellant
filed a formal complaint alleging that he was the victim of unlawful
employment discrimination on the basis of reprisal (prior EEO activity).
On December 15, 1997, the agency issued a final decision accepting for
investigation allegation (2) of appellant's complaint but dismissing
allegation (1) as untimely. Specifically, the agency determined that
appellant's EEO contact on August 22, 1997 concerning allegation (1)
which occurred on June 23, 1997 was beyond the forty-five (45) day time
limitation.
On appeal, appellant asserts that he was unaware that he had been
discriminated against until July 8, 1997. Appellant further asserts
that the time limit for filing should be waived because allegations (1)
and (2) of appellant's complaint constitute a continuing violation.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person 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 forty-five (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 forty-five (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. When a complainant has some reason to support
the belief that prohibited discrimination has occurred, contact with
a Counselor must occur. Waiting until one has proof of discrimination
before initiating a complaint can result in untimely contact. See Bracken
v. U.S. Postal Service, EEOC Request No. 05900065 (March 29, 1990).
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). 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 believe 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).
Incidents that are sufficiently distinct to trigger the running of the
limitations period do not constitute continuing violations. See Miller
v. Shawmut Bank, 726 F.Supp. 331, 341 (D. Mass. 1989); Cogen v. Milton
Bradley Co./Hasbro Inc., 49 Empl. Prac, Dec. (CCH) 38,894 (D. Mass, 1989).
In Cogen the court stated that "discrete acts of discrimination taking
place at identifiable points in time, are not continuing violations
for the purposes of extending the time limitations period. Id. 58,
757; see also Edinboro v. Department of Health & Human Services, 704
F.Supp. 364,367 (S.D.N.Y. 1988)(demotion not a continuing violation).
Upon review, we find that the agency's dismissal of allegation (1) for
untimely EEO contact was proper. Appellant does not argue that he was
unaware of the time limits. Rather, appellant alleges that he did not
have reason to know that he was discriminated against prior to August
22, 1997. The Commission is not persuaded by appellant's assertions.
We determine that appellant had or should have had a reasonable suspicion
of discrimination prior to August 22, 1997. Moreover, allegation (1)
was an event separate and distinct, which when it occurred, should
have given rise on the part of appellant to a reasonable suspicion of
discrimination. Accordingly, based on a review of the record herein,
the allegation does not constitute a continuing violation.
CONCLUSION
Accordingly, the agency's decision dismissing allegation (1) of
appellant's complaint is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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:
February 2, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations