05990987
11-08-1999
Catherine Coley, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Catherine Coley v. Social Security Administration
05990987
November 8, 1999
Catherine Coley, )
Appellant, )
) Request No. 05990987
v. ) Appeal No. 01983879
) Agency No. 980172
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On August 4, 1999, Catherine Coley (appellant) timely initiated
a request to the Equal Employment Opportunity Commission (the
Commission) to reconsider the decision in Catherine Coley v. Social
Security Administration, EEOC Appeal No. 01983879 (June 29, 1999).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 29 C.F.R. �1614.407(a).
The party requesting reconsideration must submit written argument
or evidence which tends to establish one or more of the following
three criteria: new and material evidence is available that was
not readily available when the previous decision was issued, 29
C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); or the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). Appellant's request is denied.
Appellant filed an EEO complaint on December 8, 1997, containing fourteen
allegations of discrimination. The agency accepted allegations (1)-(9)
for investigation. The agency dismissed allegations (10)-(13) as untimely
when it concluded that appellant contacted an EEO Counselor on July
30, 1997, after the expiration of the applicable time limitation.<1>
Allegation (14) was also dismissed for failure to state a claim of
harassment. The previous decision affirmed the agency's dismissal of
allegations (10)-(13), finding that appellant failed to establish a
continuing violation and that appellant reasonably should have suspected
discrimination sooner but did not preserve her EEO rights. The previous
decision also reversed the agency's dismissal of allegation (14) and
remanded it for further processing by the agency.
In her request for reconsideration, appellant fails to include new
evidence. Appellant contends that she did not become aware of the bases
of color and reprisal regarding allegations (10) and (13) until she
consulted her representative. Appellant further alleges that allegations
(10)-(13) constitute a continuing violation.
Appellant raises issues pertaining to EEOC Regulation 29
C.F.R. �1614.107(b) which 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 �1614.105, �1614.106 and �1614.204(c), unless
the agency extends the time limits in accordance with �1614.604(c).
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation period
is triggered. See Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)
- the predecessor of 29 C.F.R. �1614.105(a)(1)).
In the case at hand, appellant first argues that she was unaware that
she could use the bases of color and reprisal for a discrimination
complaint until she sought out representation and not at the time of
the incidents in allegations (10) and (13). The Commission finds that
appellant had notice of the bases of reprisal and color due to her prior
EEO activity.<2> Therefore, we find that the time limitation should
not be extended for this reason.
Appellant also argues that allegations (10)-(13) constitute a continuing
violation, and that the time limitation period should be waived.
The Commission finds that the previous decision correctly found that
appellant failed to establish a continuing violation in this case.
The Commission has held that the time requirement for contacting an EEO
Counselor can be waived as to certain allegations within a complaint
when the complainant alleges a continuing violation, that is, a series
of related discriminatory acts, one of which falls within the applicable
time period. See McGivern v. United States Postal Service, EEOC Request
No. 0591150 (December 28, 1990). In order to establish a continuing
violation, a complainant must show that the alleged discriminatory
acts are sufficiently interrelated, and not merely isolated events.
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 not sufficient
to allege that the effects of past discrimination have continued until
the present. In Berry, the court set forth three relevant factors.
The first is whether the acts involved the same type of discrimination.
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). The second
factor is whether the events were recurring or isolated incidents.
The final element is the degree of permanence which should trigger an
employee's awareness of and duty to assert his or her rights or which
should have indicated to the employee that the continued existence of the
adverse consequences of the act is to be expected without being dependent
on a continuing intent to discriminate. Should these factors 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).
Furthermore, it is important, in determining whether a claim for a
continuing violation is stated, to consider whether an appellant had prior
knowledge or suspicion of discrimination and the effect of this knowledge.
See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33,
921 F.2d 369 (1st Cir. 1990) (plaintiff who believed that he had been
subjected to discrimination had an obligation to file promptly with
the Commission or lose his claim, as distinguished from the situation
where a plaintiff is unable to appreciate that he is being discriminated
against until he has lived through a series of acts and is thereby able
to perceive the overall discriminatory pattern).
Upon review of the record, the Commission finds allegations (10)-(13)
are discrete events which should have triggered appellant's awareness of
and duty to assert her rights. Further, we find that appellant suspected
that she had been subjected to discrimination but failed to promptly
file with the Commission.<3> Accordingly, we find that appellant failed
to establish a continuing violation and was untimely when she contacted
the EEO Counselor in relation to allegations (10)-(13).
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request does not meet the criteria of 29 C.F.R. �1614.407(c), and it is
the decision of the Commission to deny appellant's request. The decision
of the Commission in Appeal No. 01983879 remains the Commission's final
decision. There is no further right of administrative appeal from a
decision of the Commission on a request for reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations 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.
RIGHT TO FILE A CIVIL ACTION (Q0993)
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. 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:
November 8, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 In allegation (10), appellant claims that she was discriminated on the
bases of age and reprisal when on April 3, 1996 and September 1, 1996
appellant was not selected for various vacancies. In allegation (13),
appellant asserts that the agency discriminated against her on the bases
of color and reprisal in November 1996, when it reassigned her to a
different module. In allegations (11) and (12), appellant alleges that
she was discriminated against solely on the basis of reprisal when (11)
from December 1994 through November 1996, she did not receive training
which she was promised and (12) on March 4, 1997, the agency denied her
request for reassignment.
2 The Notice of Right to File a Formal Complaint of Discrimination form
lists the different bases of discrimination, including color and reprisal
for having participated in the statutory EEO process. Appellant has
filed prior EEO complaints in 1991, 1994, and September 1995 and she
received this form in relation to those complaints.
3 Appellant argues that she was not aware of the discriminatory nature
of the events cited in allegations (10)-(13) until she was advised by
her representative. In her pre-complaint counseling, appellant stated
that she felt that she was discriminated against because her supervisors
were aware of her prior EEO activity. This, in conjunction with the
events cited in appellant's allegations (10)-(13), would have given
appellant the requisite reasonable suspicion that the incidents may have
been discriminatory. Although appellant argues that her discussion with
her representative was the triggering event which made her realize the
alleged discriminatory nature of the events, we do not find this argument
compelling.