01994634
11-01-1999
Arnold I. Anisman, Appellant, v. Larry H. Summers, Secretary, Department of the Treasury, Agency.
Arnold I. Anisman v. Department of the Treasury
01994634
November 1, 1999
Arnold I. Anisman, )
Appellant, )
)
v. )
) Appeal No. 01994634
Larry H. Summers, ) Agency No. 97-2105
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On May 17, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated April 2, 1999, dismissing
two allegations from his complaint for untimely counselor contact.
The Commission accepts the appeal in accordance with EEOC Order No. 960,
as amended.
On October 10, 1996 appellant contacted the EEO office regarding
allegations of discrimination based on sex. Informal efforts to resolve
appellant's concerns were unsuccessful. Accordingly, on January 27,
1997, appellant filed a formal complaint, alleging:
On September 23, 1996, he was not selected for promotion to Attorney
(Estate Tax), GS-0905-12, position under Vacancy Announcement
No. 96B0031B.
Thereafter, appellant requested a hearing before an Administrative Judge
(AJ). During the pre-hearing conference appellant contended that the
correct issue included a pattern of nonselections for several vacancy
announcements. The complaint was remanded and appellant was given
the opportunity to clarify his allegations. The agency described the
additional allegations as follows:
2. On July 14, 1994, appellant was not selected for promotion to
Attorney (Estate & Gift), GS-0905-13, position under Vacancy Announcement
No. 94E0038B; and,
On May 14, 1995, appellant was not selected for promotion to Attorney
(Estate Tax), GS-0905-13 position under Vacancy Announcement
No. 95E0197B.
The agency issued a FAD dismissing allegations 2 and 3 for untimely
counselor contact, pursuant to 29 C.F.R. �1614.107(b). The FAD also
indicated that the dismissed allegations were not part of a continuing
violation.
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.
In the instant case, the agency dismissed allegations 2 and 3 for untimely
counselor contact and failure to establish a continuing violation.
The continuing violation doctrine can be invoked to suspend the normal
time limit for contacting an EEO counselor. See Rowan v. Department
of Transportation, EEOC Request No. 05940661 (February 24, 1995).
A continuing violation will not be found, however, where the acts
complained of are by themselves capable of triggering a reasonable
suspicion of discrimination. See Blighton v. Department of the Treasury,
EEOC Request No. 05940483 (November 29, 1994). Here, allegations 2
and 3 involve two distinct nonselections that occurred in 1994 and 1995.
The agency also indicates that different selecting officials were involved
in each instance. Therefore, the Commission finds that appellant should
have reasonably suspected discrimination more than forty-five days before
his October 10, 1996 contact, regarding events that occurred one and
two years earlier. The agency's decision to dismiss allegations 2 and
3 was proper.
Finally, notwithstanding our decision to affirm the agency's dismissal of
allegations 2 and 3, it is well settled that past alleged discriminatory
events, which were not the subject of timely complaints, may be used
as background evidence for a timely complaint, although they otherwise
have no legal consequences under Title VII. See United Airlines,
Inc. v. Evans, 431 U.S. 553, 558 (1977). Therefore, appellant may
include information regarding allegations 2 and 3 as background for
accepted allegation 1.
Accordingly, the agency's decision dismissing allegations 2 and 3 is
AFFIRMED.
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:
11/01/1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations