01982229_r
04-30-1999
William J. O'Donnell, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
William J. O'Donnell, )
Appellant, )
)
v. ) Appeal No. 01982229
) Agency No. 97-3248
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
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., and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq. Appellant received the final
agency decision on December 22, 1997. The appeal was postmarked January
21, 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 a portion
of appellant's complaint on the grounds of untimely EEO contact and the
entire complaint on the grounds of mootness.
BACKGROUND
Appellant initiated contact with an EEO Counselor on April 24, 1997.
On July 9, 1997, appellant filed a formal EEO complaint wherein he alleged
that he was discriminated against on the bases of his race (caucasian),
color (white), religion (Catholic), sex (male), national origin (Irish),
age (dob 11/19/45), and in reprisal for his previous EEO activity when
he was not scheduled to attend the annual American Bar Association Tax
and Insurance seminar from 1993 through 1997.
In its final decision, the agency dismissed all of appellant's complaint
except for his non-attendance of the seminar in March 1997, on the grounds
that appellant failed to contact an EEO Counselor in a timely manner.
With regard to the claim of timeliness under the continuing violation
theory, the agency rejected this claim as it determined that appellant's
nonattendance of the training class annually from 1993 through 1997,
reflected separate and distinct employment decisions, with sufficient
permanence that should have led appellant to contact an EEO Counselor.
The agency noted that in May 1996, appellant filed another EEO complaint,
wherein appellant requested as a remedy that he be allowed to attend
the insurance tax training class. The agency concluded that appellant
therefore had a reasonable suspicion of discrimination as early as
May 1996. The agency dismissed the entire complaint on the grounds
of mootness. According to the agency, appellant attended the seminar
from August 4, 1997 through August 15, 1997. The agency concluded that
there can be no recurrence of the alleged violation, and appellant did
not identify any continuing effects of the alleged violation.
On appeal, appellant argues that for five consecutive years, he was
overlooked among colleagues who were assigned to attend the American
Bar Association Tax and Insurance seminar. Appellant claims that in
1997, revenue agents with no insurance experience attended this seminar.
Appellant maintains that his complaint is not moot because the seminar
that he attended in August 1997, involved a basic understanding of
property and casualty insurance, rather than the continuing professional
education seminar on insurance and tax matters. According to appellant,
his nonattendance for five straight years demonstrates a pattern of
retaliation and harassment.
In response, the agency asserts that appellant failed to meet the minimum
eligibility requirements to attend the requested seminar. According to
the agency, appellant had not completed the basic insurance training
course that was a prerequisite for attending the seminar at issue.
The agency asserts that in his appeal, appellant states that he told his
managers in 1994, 1995, and 1996, that he felt discriminated against
because he was not allowed to attend the seminar. The agency further
notes that in his previous EEO complaint, appellant sought to attend the
seminar as relief for the alleged discrimination. The agency maintains
that it is therefore clear that appellant was aware of the alleged
discrimination long before he contacted an EEO Counselor with regard
to the instant complaint. Further, the agency argues that each denial
to attend the seminar was a separate event that does not fit within the
continuing violation theory. With regard to its mootness determination,
the agency asserts that since appellant's most recent application to
attend the seminar, appellant has taken the requisite basic course and
has been assigned to work on insurance cases. The agency states that as
a result, it is likely appellant will attend the next seminar if budget
considerations permit.
ANALYSIS AND FINDINGS
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
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 McGovern 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).
Appellant alleges that he was discriminated against when from 1993 through
1997, he was not permitted to attend a continuing professional education
seminar on insurance and tax matters. Appellant did not initiate contact
with an EEO Counselor until April 24, 1997. Appellant argues that five
straight years of denials reflect a continuing pattern of retaliation and
harassment. We find that each denial was a discrete event of sufficient
permanence that appellant should have had a reasonable suspicion of
discrimination long before his contact of an EEO Counselor in April 1997.
Further, we note that appellant's request to attend the seminar was
part of his requested remedy in his previous complaint. Therefore,
we find that appellant had a reasonable suspicion of discrimination
more than 45 days before his contact of an EEO Counselor, and that
the continuing violation theory is not applicable to this matter.
Accordingly, the agency's dismissal of the portion of the complaint
concerning appellant's nonattendance of the seminar in the years 1993-1996
was proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(e) states that the agency shall
dismiss a complaint that is moot. In County of Los Angeles v. Davis,
440 U.S. 625 (1979), the Supreme Court held that where the only matter
to be resolved is the underlying issue of discrimination, a case can be
closed if:
(1) it can be said with assurance that there is no reasonable
expectation that the violation will recur; and
(2) interim relief or events have completely eradicated the
effects of the alleged violation.
Upon review, we find that the portion of appellant's complaint dealing
with his nonattendance of the Tax and Insurance seminar in March 1997,
is not moot. The agency found that appellant's complaint was rendered
moot by appellant's attendance of a Basic Property and Casualty Insurance
class in August 1997; however, this class is not the same class that
appellant was denied permission to attend in March 1997. While the
agency argues that appellant had to attend the basic course prior to
the seminar at issue and he now has eligibility to attend this class,
there is no evidence of record that appellant has yet attended the
seminar in question. We find that interim events have not completely
eradicated the effects of the alleged violation. Accordingly, the
agency's dismissal of the portion of the complaint involving appellant's
March 1997 nonattendance was improper and is REVERSED. This portion of
the complaint is hereby REMANDED for further processing in accordance
with the Order below.
CONCLUSION
The agency's dismissal of the portion of the complaint concerning
appellant's nonattendance of the American Bar Association Tax and
Insurance seminar from 1993-1996 is hereby AFFIRMED. The agency's
dismissal of the portion of the complaint dealing with appellant's
nonattendance of the American Bar Association Tax and Insurance seminar
in March 1997 is hereby REVERSED.
ORDER (E1092)
The agency is ORDERED to process the remanded part of the complaint in
accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded part of the complaint
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to appellant a copy of the investigative file and
also shall notify appellant 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 appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 30, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations