01986078_r
09-10-1999
Crystal Woodard, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Crystal Woodard, )
Appellant, )
)
v. ) Appeal No. 01986078
) Agency No. 8-11-088
Alexis M. Herman, )
Secretary, )
Department of Labor, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her 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. Appellant's attorney received the final agency
decision on June 4, 1998. The appeal was postmarked July 4, 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.
ISSUES PRESENTED
1. The first issue presented is whether the agency properly dismissed
allegation 2 of appellant's complaint on the grounds that appellant
failed to contact an EEO Counselor in a timely manner.
2. The second issue presented is whether the agency properly dismissed
allegation 3 of appellant's complaint on the grounds of failure to
state a claim.
BACKGROUND
Appellant, a Unemployment Insurance Program Specialist, GS-12, initiated
contact with an EEO Counselor on September 12, 1997. On March 30,
1998, appellant filed a formal EEO complaint wherein she alleged that
she was subjected to discrimination on the bases of her race (black,
African-American) when:
She was not selected for the position of Unemployment Insurance Program
Specialist, GS-0106-13, under Vacancy Announcement No. ETA-97-041,
Division of Performance Review. The position was filled on September
2, 1997.
She was not selected for the position of Unemployment Insurance Program
Specialist, GS-0106-13, under Vacancy Announcement No. ETA-97-032,
Division of Program and Implementation. This position was filled on
July 1, 1997.
Since approximately 1992, she has been denied a GS-0106-13 position as
part of a continuing pattern of discrimination.
In its final decision, the agency accepted allegation 1 for investigation
and dismissed allegation 2 of appellant's complaint on the grounds of
failure to contact an EEO Counselor in a timely manner. The agency
determined that appellant's EEO contact on September 12, 1997, was after
the expiration of the 45-day limitation period. The agency determined
that a continuing violation is not applicable to Vacancy Announcement
ETA 97-032 because a different official from a different division was
involved in this decision as opposed to the selection accepted for
investigation. The agency noted that another Unemployment Insurance
Program Specialist position, GS-0106-13, was posted on April 28, 1997, as
Vacancy Announcement ETA-97-033. According to the agency, appellant did
not apply for the position. Consequently, by using Vacancy Announcement
ETA-97-033, the agency dismissed allegation 3 on the grounds of failure
to state a claim.
On appeal, appellant argues that the agency maintained a discriminatory
promotion system. Appellant claims that she applied for numerous
positions since 1992, but she has not been selected for any of the
positions for which she applied. Appellant also claims that she has been
denied training opportunities. Appellant states that all of the selectees
have been white. According to appellant, the system of training future
selectees was in place before July 1, 1997. Appellant maintains that
the discrimination against her constitutes a continuing violation.
In response, the agency asserts with regard to appellant's claim of a
continuing violation that appellant did not provide sufficient information
to connect the alleged actions. The agency states that a common nexus
does not exist between the nonselections for Vacancy Announcement ETA
97-041 and Vacancy Announcement ETA 97-032 as different officials in
different divisions made the respective selections. Finally, the agency
asserts that appellant failed to provide an explanation for her delay
in contacting an EEO Counselor.
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).
In determining whether a continuing violation exists, the Commission
has relied on the decision in Berry, wherein the court set forth three
relevant factors:
The first is subject matter. Do the alleged acts involve the same type
of discrimination, tending to connect them in a continuing violation?
The second is frequency. Are the alleged acts recurring (e.g., a
biweekly paycheck) or more in the nature of an isolated work assignment
or employment decision? The third factor, perhaps of most importance,
is degree of permanence. Does the act have the degree of permanence
which should trigger an employee's awareness of and duty to assert
his or her rights, or which should indicate 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?
Berry, 715 F.2d at 981. Incidents that are sufficiently distinct
to trigger the running of the limitations period do not constitute
continuing violations. See, e.g., Miller v. Shawmut Bank, 726
F. Supp. 337, 341 (D. Mass. 1989); Cogen v. Milton Bradley Co./Hasbro
Inc., 449 Empl. Prac. Dec. (CCH) �38,894 (D. Mass. 1989). In Cogen,
the court rejected the plaintiff's attempt to apply the continuing
violation theory to, among other allegations, an assignment issue.
The court stated that "discrete acts of discrimination taking place
at identifiable points in time" are not continuing violations for the
purpose of extending the limitations period. Id. at 58,757; see also
Edinboro v. Department of Health & Human Services, 704 F. Supp. 364,
367 (S.D. N.Y. 1988) (demotion not a continuing violation).
In the present case, appellant alleges that she was discriminated against
when she was not selected for various vacancies for the position of
Unemployment Insurance Program Specialist, GS-0106-13. With regard
to Vacancy Announcement No. ETA-97-032, we note that this position was
filled on July 1, 1997. Appellant did not initiate contact with an EEO
Counselor until September 12, 1997, after the expiration of the 45-day
limitation period. We find that this nonselection does not meet the
criteria of a continuing violation. Nonselections are discrete events
with a degree of permanence that should trigger an appellant's suspicion
of discrimination at the time they occur and hence her duty to contact an
EEO Counselor. Furthermore, there is no evidence that the nonselections
were similar, i.e., involved the same agency officials or were in the
same work location. Accordingly, the agency's decision to dismiss
allegation 2 of appellant's complaint on the grounds of untimely EEO
contact was proper and is AFFIRMED.
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).
In allegation 3, appellant alleged that she was subjected to ongoing
discrimination since 1992, since she has repeatedly been denied a
GS-0106-13 position. We find that absent specific identification of
nonselections, this allegation does not state a claim upon which relief
could be granted. Allegations 1 and 2 involve specific nonselections
and, hence state claims upon which relief could be granted if appellant
prevailed; allegation 3, however, does not identify a specific injury.
Consequently, we find that allegation 3 was properly dismissed for
failure to state a claim for the reasons set forth herein.<1>
CONCLUSION
The agency's final decision is AFFIRMED for the reasons set forth herein.
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. 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:
Sept. 10, 1999
DATE Carlton M. Hadden, Acting Director
1 We note that it is well-settled that past alleged discriminatory
events, which were not the subject of a timely complaint, may be
used as background evidence for a timely complaint, although they
otherwise have no legal consequences under Title VII. See United
Airlines v. Evans, 431 U.S. 553, 558 (1977). Consequently,
appellant may use prior nonselections for GS-0106-13 positions,
which she is not specifically pursuing, including allegation 2,
as background evidence in the further processing of allegation 1.