05970448
11-08-1999
Donald G. Moore, Appellant, v. Lawrence H. Summers Secretary, Department of the Treasury, Agency.
Donald G. Moore v. Department of the Treasury
05970448
November 8, 1999
Donald G. Moore, )
Appellant, )
)
v. ) Request No. 05970448
) Appeal No. 01963977
) Agency No. 96-3011
Lawrence H. Summers )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
GRANTING OF REQUEST TO REOPEN
On February 7, 1997, Donald G. Moore (hereinafter referred to as
appellant) initiated a request to the Equal Employment Opportunity
Commission (EEOC) to reconsider the decision in Moore v. Department of the
Treasury, EEOC Appeal No. 01963977 (January 22, 1997). 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 misapplication of established policy,
29 C.F.R. �1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). Appellant's request is granted.
The issues in this case are whether the agency properly dismissed a
portion of appellant's complaint because: (1) appellant failed to contact
an EEO Counselor in a timely manner and one allegation was previously
raised in the grievance process; and, (2) the allegations did not
constitute a continuing violation. Appellant is a GS-9 Customs Inspector
at the John F. Kennedy Airport ("JFK Airport."). His allegations concern
five nonselections to the position of Senior Customs Inspector, GS-11,
at the JFK Airport. Four of these nonselections occurred from 1992 to
1994 and one occurred on April 12, 1995.
Appellant is an agency Customs Inspector at the JFK Airport. He first
became employed by the Customs Service in 1971 as a Sky Marshal and on
March 26, 1991 was mandatorily retired due to his age from his position
as a Special Agent. Also on March 26, 1991, appellant became employed
with the agency as a Customs Inspector 1890, GS-9/10 and continued to be
assigned to JFK Airport. Appellant initially contacted an EEO Counselor
regarding the five nonselections on or about June 5, 1995 after he
allegedly became aware, on May 5, 1995, that age discrimination played
a role in the nonselections. This EEO contact followed his last
nonselection, in April 1995, under vacancy announcement NY-R93-021JB.
On July 13, 1995, appellant appealed this nonselection with the Merit
Systems Protection Board (MSPB) claiming that he was denied promotion
because of age discrimination and that this discrimination dated back
to 1991. On August 14, 1995, the MSPB dismissed his appeal for lack of
jurisdiction.
On October 19, 1995, appellant filed the EEO complaint at issue herein. On
March 21, 1996, the agency issued a final agency decision (FAD). The
agency accepted the allegation concerning the last nonselection in
April 1995 but dismissed the prior four nonselections for untimely EEO
contact.
The previous decision affirmed the agency's dismissal of four of the
nonselections for failure to timely contact an EEO Counselor and because
one of the nonselections had already been raised through the grievance
procedure. The previous decision rejected appellant's argument that the
nonselections constituted a continuing violation of discrimination. The
previous decision concluded that each nonselection constituted a
separate and distinct act which was permanent in nature and that there
was evidence of appellant's prior awareness of age discrimination. The
previous decision did not consider appellant's statement in support of
his appeal (the Statement) on the grounds that it was untimely filed.
In his request for reconsideration, appellant contends that the Commission
should have considered his Statement in the previous appeal because he
properly requested a short extension of five days to file the Statement
and he never received any communication from the Commission with respect
to this request. Our review of the record shows that the Commission
received appellant's request for an extension of time but did not rule
on it. We therefore find that the Statement should have been considered
in connection with the previous decision. In the Statement, appellant
argued that he only became aware of the existence of age discrimination
when he learned, on May 5, 1995, of the existence of a discriminatory
seniority system which precluded his opportunities for promotion since
1992. Specifically, appellant stated that on May 5, 1995, he received
his score sheet for Vacancy Announcement NY-R/95-001 at home and learned
that some of the people promoted had less seniority and were considerably
younger than he was. According to appellant, he then became aware that an
alleged discriminatory seniority system and the use of a discriminatory
tie-breaking criteria were making it impossible for him to be selected
to the Customs Inspector position over younger employees.
While EEOC Regulation 29 C.F.R. 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of an EEO Counselor
within 45 days of the date of the alleged discriminatory action, the
limitations period may be extended when a complainant demonstrates a
continuing violation. A continuing violation is a series of interrelated
discriminatory actions, at least one of which falls within the filing
period, or the maintenance of a discriminatory system or policy before
and during the filing period. Valentino v. United States Postal Service,
674 F.2d 56, 65 (D.C. Cir. 1982).
After careful review, we find that appellant has shown the existence of
an alleged discriminatory system or policy, in place during the relevant
time periods, which he could not have reasonably been aware of prior
to May 5, 1995 when he received all of the information related to the
nonselection and to the alleged discriminatory process. Under this policy,
certain, younger employees were awarded extra seniority credit for prior
part-time and casual, part-time Customs employment while appellant did
not receive seniority credit for his pre-retirement work in the Customs
Service since 1971. According to appellant, this system effectively
discriminated against him based on his age, resulting in his failure
to receive enough seniority credit to be placed on the "best qualified
list" and to ultimately be chosen for promotion. We note, also, that the
agency admitted in its FAD that it was not possible to establish whether
the same selecting official was involved in each nonselection. However,
each nonselection involved exactly the same position, the same airport,
and each selection was apparently processed through the same agency
personnel office. Accordingly, under the particular facts of this
case, we find that appellant has established a continuing violation
of discrimination with regard to the five nonselections and that his
allegations should have been accepted by the agency as timely.
After a review of appellant's request for reconsideration, the previous
decision and the entire record, the Commission finds that appellant's
request meets 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. 01963977 is REVERSED and appellant's
complaint is REMANDED for further processing in accordance with the
ORDER below. There is no further right of administrative appeal from
the decision of the Commission on this 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 allegation 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 (R0993)
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. 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