01994721
09-07-1999
Alfredo D. Echeverria, Appellant, v. Harvey B. Gantt, Chairman, National Capital Planning Commission, Agency.
Alfredo D. Echeverria, )
Appellant, )
)
v. )
) Appeal No. 01994721
Harvey B. Gantt, ) Agency No. 01-99
Chairman, )
National Capital Planning )
Commission, )
Agency. )
)
)
DECISION
Appellant filed a timely appeal with this Commission from a final agency
decision (�FAD�) concerning his complaint of 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
(ADEA), as amended, 29 U.S.C. �621 et seq. In his complaint, appellant
alleged that he was subjected to discrimination on the basis of national
origin (Hispanic), age (DOB: 11/12/35) and reprisal (prior EEO activity),
when: (1) on June 10, 1998, he was informed that he had not been selected
for the position of Assistant Executive Director for Regional Planning
(�AEDRP�); and (2) on September 2, 1998, he was informed that another
individual had been selected for the position of Associate Executive
Director (Management) (�AEDM�). The FAD was received by appellant on
April 23, 1999. The appeal was received by the Commission on May 24,
1999. 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
The issue on appeal is whether the agency properly dismissed the complaint
due to untimely EEO Counselor contact.
BACKGROUND
The record reveals that appellant, an architect, had been seeking
employment with the agency since 1997. Upon learning of the AEDRP
position, appellant applied for the position, but was notified
on June 10, 1998, that he had not been selected. On July 2, 1998,
appellant became aware of the AEDM position while accessing the United
States Office of Personnel Management's website listing current federal
employment vacancies. The abbreviated vacancy announcement for the AEDM
position stated that the application period closed on August 3, 1998,
and that prospective applicants needed to complete a request form to
receive the full announcement. Appellant requested the announcement
using the Internet. He also took the precaution of sending a written
request through the mail.
After not receiving the announcement, appellant telephoned the agency on
September 2, 1998, to inquire about his request. During the conversation,
he learned that the agency had filled the AEDM vacancy. Believing that
the agency's delay in sending him the announcement was discriminatory,
appellant telephoned the Executive Director of the agency on September
17, 1998, to receive information on how to file an equal employment
opportunity (�EEO�) complaint. The agency thereafter faxed appellant
information regarding federal sector EEO complaint processing.
Based on the faxed information, appellant submitted to the agency a
written request for EEO counseling on September 22, 1998. Unable to
resolve the matters informally, appellant filed a formal complaint on
January 13, 1999, alleging discrimination as referenced above. On April
21, 1999, the agency issued a final decision dismissing appellant's
complaint due to untimely EEO Counselor contact. The agency stated that
since the vacancy announcement provided a closing date of August 3, 1998,
appellant should have contacted an agency EEO counselor within 45 days
of that date.
On appeal, appellant contends that September 2, 1998 was the date he
learned of the selection for the AEDM position and thus was the date
he became aware of the discrimination, and that he did not become aware
that his prior nonselection for the AEDRP was also discriminatory until
September 2, 1998. Appellant also contends that the agency improperly
delegated its authority to issue a final decision to the Federal Election
Commission (�FEC�).<1>
ANALYSIS
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
to determine when the forty-five (45) day limitation period is triggered.
See Ball v. United States Postal Service, EEOC Request No. 05880247
(July 6, 1988). Thus, the time limitation can be triggered before all
the facts that support a charge of discrimination have become apparent,
but not until a complainant reasonably suspects discrimination.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, 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 Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In this case, appellant contends that he did not have a reasonable
suspicion of discrimination until September 2, 1998, when the agency
informed him of the selection for the AEDM position. Appellant states
that before learning of the selection, he believed that the agency's
inaction was typical agency bureaucracy, in that in the past it had failed
to timely respond to other requests and had often extended announcement
deadlines. The agency contends that the reasonable date for appellant
to have suspected discrimination was August 3, 1998, the closing date
for the position.
In reviewing the evidence, we agree with the agency and find that the
closing date of the position should have triggered appellant to inquire
as to the status of his application. Regardless of the appellant's
past experience with the agency, he was aware that the vacancy closed
on August 3, 1998. As such, it is reasonable to conclude that if a
prospective applicant had not received requested vacancy information,
he would have contacted the agency by the closing date of the vacancy.
However, we also find that appellant made his initial contact for EEO
counseling on September 17, 1998, when he telephoned the agency for
information on how to file a formal EEO complaint. This request for
counseling was made exactly 45 days after the closing of the vacancy
announcement, and thus within the time limits of our regulations.
Accordingly, we find that the agency erred in dismissing the portion of
appellant's complaint that addressed the AEDM position.
Appellant also contends that the agency's action with regard to
the AEDM position was not an isolated incident, but was continuing
violation which began with his nonselection for the AEDRP position.
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 Reid v. Department of Commerce, EEOC
Request No. 05970705 (Apr. 22, 1999); McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (Dec. 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 Maldonado v. Department of the Interior, EEOC Request
No. 05900937 (Oct. 31, 1990); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (Sept. 21, 1990); Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989). 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).
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 (Aug. 25, 1992).
Moreover, where, as here, a complainant alleges "recurring incidents"
of discrimination, �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 (Dec. 16, 1993)(citing Williams, supra). 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.� Since the agency failed to address appellant's
continuing violation claim in this case, we remand for a determination
as to whether the appellant's prior nonselection for the AEDRP position
was part of a continuing violation.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint is
VACATED, and the complaint is REMANDED for further processing consistent
with this decision and all applicable regulations.
ORDER
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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 the
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 the
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 (R0993)
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. 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:
September 7, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 Because individuals
in the agency's EEO office were named in
appellant's complaint, the agency requested that
the FEC process appellant's complaint. We note
that this is a common practice used to ensure
impartiality and find no error in the agency's
use of the FEC in this case.