05980203
11-30-2000
David K. Asendorf, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency,
David K. Asendorf, )
Complainant, )
)
v. ) Request No. 05980203
) Appeal No. 01971619
Kenneth S. Apfel, ) Agency No. 960134
Commissioner, )
Social Security Administration, )
Agency, )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On December 12, 1997, complainant timely initiated a request to the
Equal Employment Opportunity Commission to reconsider the decision
in David Asendorf v. Kenneth S. Apfel, Commissioner, Social Security
Administration, EEOC Appeal No. 01971619 (November 7, 1997), which
he received on November 12, 1997.<0> EEOC Regulations provide that
appellate decisions on agency final actions and decisions are final,
unless the Commission reconsiders the case. 64 Fed. Reg. 37644,
37659, (1999) (to be codified and hereinafter referred to as 29
C.F.R. � 1614.405(b)). The Commission, in its discretion, may grant
reconsideration if the party requesting reconsideration demonstrates that:
(1) the appellate decision involved a clearly erroneous interpretation
of material fact or law, 29 C.F.R. � 1614.405(b)(1); or (2) the decision
will have a substantial impact on the policies, practices, or operations
of the agency, 29 C.F.R. � 1614.405(b)(2).
ISSUE PRESENTED
Whether the agency properly framed the issues in complainant's
discrimination complaint.
BACKGROUND
Complainant filed a complaint in which he claimed that the agency had
maintained a policy of promoting white females to managerial positions,
and that he had been unable to attain such a promotion to GM-13 branch
manager because of his gender. In his initial contact letter with the
EEO counselor on November 11, 1995, he described the following incidents:
He had served as a GM-12 branch manager between November 1986 and June
1988. In June 1988, his branch was converted into a district, but his
position was not converted to district manager. Instead, he was forced
to compete for the district manager's position, and a female was selected
for the position.
He had been nonselected for seven GM-13 vacancies between April 1990
and November 1993. All of the selectees were female.
He had earned outstanding appraisals in his position as a staff assistant
between 1990 and 1994, but was given lower cash awards than females.
Complainant did not receive an upgrade to GM-13 branch manager on
September 13, 1995, when five females did receive such an upgrade.
In January 1995, the area director �set up� the various upgrades in
order to ensure that females would receive promotions.
The agency intentionally created a disparity among the area branch
offices by not assigning operations supervisors to branches that had
male managers.
In his November 11, 1995 memorandum of contact, complainant characterized
these incidents as evidence of a systemic pattern of sex discrimination
involving promotions. Yet the agency did not accept complainant's
complaint as a single claim. Rather, it fragmented the complaint
into seven separate allegations. It accepted items (4) through (6)
above, and numbered them as allegations (1) through (3) in its final
decision. It rejected items (1) through (3) above on the grounds that
complainant failed to contact an EEO counselor in a timely manner on those
allegations. The agency numbered the rejected items as allegations (4)
through (7) in its final decision.<2> The previous decision affirmed
the agency's dismissal of allegations (4) through (7), noting that
the incidents described in those allegations were not sufficiently
interrelated with the incidents described in the accepted allegations to
constitute a continuing violation. In his request for reconsideration,
complainant argues that the previous decision erred in not finding
that the agency's conduct constituted a systemic continuing violation.
See Request for Reconsideration, pp. 8-11.
ANALYSIS AND FINDINGS
Throughout the processing of his complaint, complainant maintained that he
was systematically excluded from promotional opportunities since 1988,
because of his gender. The complaint clearly describes a systemic,
as opposed to serial, continuing violation. Both the Commission and
the courts distinguish between these two species. A serial violation is
composed of a number of separate acts emanating from the same animus,
while a systemic violation has its roots in a discriminatory policy
or practice. Owen v. Social Security Administration, EEOC Request
No. 05950865 (December 11, 1997), citing Sabree v. United Brotherhood of
Carpenters and Local Joiners, 921 F.2d 396, 400 & n.7 (1st Cir. 1990).
A systemic violation need not involve an identifiable discrete act of
discrimination transpiring within the limitations period, and as long
as the policy or practice itself continues into the limitations period,
a challenger may be deemed to have filed a timely complaint. Id; Murphy
v. Social Security Administration, EEOC Request No. 05950827 (December
11, 1997). Therefore, when determining the existence of a systemic
continuing violation, it is not necessary to determine whether discrete
acts are interrelated.
In this case, complainant is challenging the agency's managerial promotion
practices. The EEO counselor stated the following in his report:
When I questioned two witnesses . . . they both related that it is widely
felt that, the AD for Area II discriminates against white males for
management promotions whenever possible. [One of the witnesses] stated
that when he began his current position in 1987, the management profile
of Area II was �most all white male managers.� He has noticed that in
the past 8 years or so, this profile has changed to mostly all white
female managers. This trend represents a pattern of discrimination to
[the witness] . . . He also told me that he knows of white males who had
aspirations of becoming field office managers in Area II, but took staff
positions after witnessing, and becoming discouraged by Area II's obvious
promotion pattern. These males, as the complainant, feel discriminated
against and not appreciated for the quality public service that they
rendered over the years, without ever being recognized by promotion.
The feeling is that the current AD will never select them over a qualified
white female � primarily based on gender.
As can be seen from the counselor's report, complainant's claim clearly
concerns the agency's promotion policies and practices, as opposed to
the individual acts enumerated in items (1) through (6). Complainant
characterizes items (1) through (6) above, not as separate and discrete
acts, but as evidence of an ongoing discriminatory pattern in managerial
promotions. The agency's acceptance of the more recent incidents is
enough to establish that the policies and practices that complainant
complains of existed well into the limitations period. Complainant's
systemic continuing violation allegation is therefore timely. Both the
agency and the previous decision erred in failing to draw the distinction
between systemic and serial continuing violations, and in characterizing
complainant's examples of systemic discrimination as separate allegations.
We will therefore order the agency to investigate complainant's claim
as a systemic continuing violation involving its promotion policies
and practices.
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
complainant's request meets the criteria of 29 C.F.R. �1614.405(b). It is
therefore the decision of the Commission to grant complainant's request.
The decision of the Commission in EEOC Appeal No.01971619 is reversed.
Complainant's claim of systemic sex discrimination with regard to the
agency's promotion policies and practices will be remanded to the agency
for processing in accordance with our order below. There is no further
right of administrative appeal from a decision of the Commission on
request for reconsideration.
ORDER (E1199)
The agency shall accept and investigate the following claim:
Whether the agency discriminated against complainant and other males on
the basis of sex in connection with promotions to GM-13 branch manager
positions, and other managerial positions, in Area II, between 1988 and
November 1995.
The investigation shall include a thorough review of the circumstances
described in items (1) through (6) listed above, including complainant's
inability to attain a promotion between 1988 and 1995, his alleged receipt
of lower cash awards than similarly situated female employees, and any
other circumstances relevant to complainant's claim, in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108), and EEO Management Directive 110
(November 9, 1999).
The agency shall acknowledge to the complainant that it has received
the remanded claims within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to complainant a copy
of the investigative file and also shall notify complainant 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 complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and an
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 (K1199)
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
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant 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. �� 1614.407
and 1614.408. 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 complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (Z1199)
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:
__11-30-00_____________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
0 1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The agency split item (2) above into two separate allegations of
nonpromotion to GM-13, and identified them as allegations (5) and (7)
in its final decision.