01984450
06-29-1999
Charles McKittrick, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Charles McKittrick v. Department of Transportation
01984450
June 29, 1999
Charles McKittrick, )
Appellant, )
)
v. ) Appeal No. 01984450
) Agency No. 498059
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On April 24, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated April 21, 1998, pertaining
to his complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq. and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The Commission accepts appellant's
appeal in accordance with EEOC Order No. 960, as amended.
In his complaint, appellant alleged that he was subjected to
discrimination on the bases of age and/or physical disability when:
1. He was not selected for an ARTS Systems Specialist position, Vacancy
Announcement No. AAF-98-0012-25071, in January 1998;
2. He was denied premium pay in 1990;
3. His Workers' Compensation claim was not properly processed in 1994;
4. He did not have access to the cc:mail system until December 1997;
5. He was obstructed and delayed in being medically treated for his
radio frequency contamination injury in 1997, because the FAA allegedly
did not follow its national orders in handling radiation contamination.
Specifically, the agency failed to follow proper procedures for checking
the worksite for radiation contamination; and
6. He was denied a transfer to the Elgin TRACON in December 1997.
As remedial relief, appellant requested, inter alia, compensatory
damages.
The agency accepted allegation 1 for investigation. The agency dismissed
allegations 2 and 3 for untimely EEO contact; 4 and 5 for failure to
state a claim; and allegation 6 for mootness. Specifically, the agency
noted that appellant did not contact an EEO Counselor until January 6,
1998, which was more than 45 days from the dates of incident raised in
allegations 2 and 3. With regard to allegation 4, the agency found that
appellant was not injured by not having access to the cc:mail system
because the information available thereon was available to appellant
through other means. The agency found that allegation 5 failed to state
a claim because the agency did not have jurisdiction over the handling
of radiation contamination. Concerning allegation 6, the agency noted
that appellant ultimately received his requested transfer to the Elgin
TRACON, rendering the allegation moot..
On appeal, appellant contends that allegations 2 and 3 should have been
treated as a continuing violation; that allegation 4 was improperly
dismissed because discriminatory harm was present; that allegation 5
is worthy of EEOC jurisdiction because it is discrimination based upon
appellant's disability; and that allegation 6 does not square with the
fact that the Commission has "never construed actions taken after the
filing of an EEO complaint as sufficient to moot the initial action."
In response, the agency contends that because appellant received his
premium pay in 1991, there is no continuing violation for the alleged
failure to award premium pay in 1990 and that allegation 3 also is not
part of a continuing violation. With regard to allegation 4, the agency
notes that it is also moot because appellant was finally given access
to the cc:mail system in December 1997, and that appellant has yet to
show how he was harmed.
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 (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.
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); 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). Relevant to the
determination are whether the acts were recurring or were more in the
nature of isolated employment decisions; whether an untimely discrete act
had the degree of permanence which should have triggered an employee's
awareness and duty to assert his or her rights; and whether the same
agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995). Further, 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. Jackson v. Department
of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
As to allegations 2 and 3, the record shows that appellant did not contact
an EEO counselor until January 6, 1998, for the denial of premium pay in
1990 and improper processing of his Workers' Compensation claim in 1994.
Appellant has not shown that allegations 2 and 3 are related to his other
timely raised allegations to establish a series or pattern of related,
discriminatory acts. Allegations 2 and 3 involve discrete incidents which
should have triggered appellant's suspicion of alleged discrimination at
the time they occurred. Since appellant failed to contact a Counselor
within 45 days of the date of the incidents raised in allegations 2 and 3,
we find that the agency's dismissal for untimely EEO contact was proper.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
With regard to allegation 4, we find that appellant did state a claim.
Access to the cc:mail system clearly is a term, condition, or privilege
of employment. Appellant alleged that he was denied access due to
discriminatory reasons. We find that allegation 4 states a claim.
We note that appellant was finally given access to the cc:mail system in
December 1997. Consequently, we find that allegation 4 must be analyzed
to determine if this intervening incident has rendered the matter moot.
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant's complaint are moot,
the factfinder must ascertain whether (1) it can be said with assurance
that there is no reasonable expectation that the alleged violation will
recur; and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged discrimination. See County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979). When such circumstances
exist, no relief is available and no need for a determination of the
rights of the parties is presented.
While appellant has been given access to the cc:mail system, which
clearly is one part of the remedial relief to which he would be entitled
if he ultimately prevailed on allegation 4. We note, however, that
appellant has requested compensatory damages. The Commission has held
that an agency must address the issue of compensatory damages when a
complainant shows objective evidence that he has incurred compensatory
damages, and that the damages are related to the alleged discrimination.
Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992), request
to reopen denied, EEOC Request No. 05930306 (February 1, 1993).
Should appellant prevail on this complaint, the possibility of an award of
compensatory damages exists. See Glover v. USPS, EEOC Appeal No. 01930696
(December 9, 1993). Therefore, we find that allegation 4 states a claim
and has not been rendered moot.
As to allegation 5, appellant alleged that the agency did not follow its
own internal procedures regarding handling of radiation contamination.
While the agency contends that this is a matter outside of its
jurisdiction, appellant is challenging the agency's internal procedures
in the handling of radiation contamination, which is a matter within
the agency's authority, not the ultimate treatment. Consequently,
we find that allegation 5 states a claim.
In allegation 6, appellant alleged that he was denied a transfer in
December 1997 to the TRACON. The agency found that allegation 6 was
moot since appellant was ultimately transferred in late December 1997.
If appellant were to prevail on his allegation, he would be entitled to a
retroactive transfer back to the time when he was first discriminatorily
denied a transfer. There is no evidence that appellant's ultimate
transfer later in the month of December was retroactive. Consequently,
we find that the record fails to show that the effects of the alleged
violation have been completely eradicated. The dismissal of allegation
6 as moot was therefore improper.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegations 2 and 3. The agency's dismissal of allegations
4, 5, and 6 is REVERSED and these allegations are REMANDED for further
processing in accordance with the ORDER below.
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.
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. 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. 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:
June 29, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations