01982151
08-24-1999
Harvey Shifren, Appellant, v. Lt. Gen. Kenneth A. Minihan, Director, National Security Agency, Agency.
Harvey Shifren v. National Security Agency
01982151
August 24, 1999
Harvey Shifren, )
Appellant, )
)
v. ) Appeal No. 01982151
) Agency No. 97-045
Lt. Gen. Kenneth A. Minihan, )
Director, )
National Security Agency, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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., and the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. �621 et seq. The agency failed to supply a
copy of a certified mail return receipt establishing the date appellant
received the agency's final decision. The appeal was postmarked January
16, 1998. Accordingly, since the agency failed to supply documentation
from which the Commission could determine the date appellant received
the final decision, the Commission presumes that appellant's appeal was
timely filed. See 29 C.F.R. �1614.402(a). The appeal is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for untimely contact with an EEO Counselor.
BACKGROUND
Appellant contacted an EEO counselor on July 17, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
he was discriminated against when (1) he learned in July 1997 that his
supervisor was not supporting him for promotion to a GGD-14 position;
and (2) he was subjected to a continuing violation since 1994 when his
supervisor failed to support him for promotion to a GGD-14 position.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on September 10, 1997, appellant filed a formal complaint
alleging that he was the victim of unlawful employment discrimination
on the bases of religion (Jewish), and age (5-20-35).
On November 10, 1997, the agency issued a final decision accepting for
investigation allegation (1) of appellant's complaint but dismissing
allegation (2) for failing to timely initiate contact with an EEO
Counselor. Specifically, the agency found that allegation (2) did
not constitute a continuing violation. The agency determined that
promotions and considerations for promotions are separate and distinct
acts which have permanent effects. Therefore, the agency concluded,
any alleged acts of discrimination regarding promotions, which occurred
more than forty-five (45) days before appellant's July 17 EEO contact
were untimely.
ANALYSIS AND FINDINGS
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 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. 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). Thus, the limitation period is not triggered until a
complainant reasonably suspects discrimination, but before all the facts
that support a charge of discrimination have become apparent.
However, this time requirement may be waived as to certain allegations
within a complaint when the complainant alleges a continuing violation,
i.e., a series of related discriminatory acts. If one of the related acts
complained of falls within the time period for contacting a Counselor,
the complaint is timely with respect to all of the acts which constitute
the alleged continuing violation. See Starr v. U.S. Postal Service,
EEOC Appeal No. 01890412 (April 6, 1989).
The record indicates that appellant contacted the EEO counselor regarding
the allegations in his complaint on July 17, 1997. The rejected portion
of appellant's complaint pertains to non-promotions which occurred
prior to July 17, 1997 The agency asserts that the violations which
allegedly occurred since 1994 are separate completed personnel actions
and do not constitute a continuing violation. We agree. The Commission
has also held that the theory of continuing violation is not applicable
where the agency's actions have a degree of permanence which should have
triggered the complainant's awareness of discrimination and the duty to
assert her rights. See Carbone v. National Security Agency, EEOC Appeal
No. 01940846 (September 29, 1994); request for reconsideration denied,
EEOC Request No. 05950057 (April 4, 1996).
Review of the record persuades the Commission further that appellant
had or should have had a reasonable suspicion of age discrimination at
the time of his non-selections when, as indicated in the report of the
EEO Counselor, appellant's supervisor allegedly had questioned him in
the past about when he would retire.
Accordingly, the Commission finds that the dismissed allegations were
isolated agency actions that should have triggered appellant's awareness
of possible discrimination and the need to assert his rights at the
time of the non-promotions and comments and inquiries by his supervisor.
Therefore, the Commission finds no grounds for extending the 45 day time
period in this case pursuant to 29 C.F.R. �1614.604(c).
CONCLUSION
Accordingly, the agency's decision dismissing a portion of appellant's
complaint is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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:
August 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations