Hugh Wright , Complainant,v.Aida Alvarez, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionAug 18, 2000
01A01004 (E.E.O.C. Aug. 18, 2000)

01A01004

08-18-2000

Hugh Wright , Complainant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.


Hugh Wright v. Small Business Administration

01A01004

August 18, 2000

.

Hugh Wright ,

Complainant,

v.

Aida Alvarez,

Administrator,

Small Business Administration,

Agency.

Appeal No. 01A01004

Agency No. 05-99-029

DECISION

On November 15, 1999, complainant filed an appeal with this Commission

from an agency decision pertaining to his complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of

1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq.<1> The Commission accepts the appeal in accordance with 64

Fed. Reg. 27,644, 37,659 (1999)(to be codified at 29 C.F.R. �1614.405).

The record shows that on March 12, 1999, complainant contacted the

EEO office regarding claims of discrimination based on race, age,

and reprisal. Informal efforts to resolve complainant's concerns,

regarding his work assignments and reassignment to another position,

were unsuccessful. On May 26, 1999, complainant filed a formal complaint.

The agency framed the claims as follows:

1) On October 14, 1997, complainant was assigned duties not related to

his position as Export Development Specialist;

2) In August 1998, complainant was assigned to process Low Documentation

loans in

Hazard, Kentucky. This assignment was unrelated to his position in

International Trade; and

3) On February 23, 1999, complainant was reassigned from his position

as Export Development Specialist to the position of Assistant District

Director of the 8(a) Business Development Program.

On September 30, 1998, the agency issued a final decision dismissing

the complaint. The agency dismissed claims 1 and 2 for untimely

EEO Counselor contact. The agency dismissed claim 3 for failure to

state a claim. Regarding claims 1 and 2, the agency determined that

complainant's EEO Counselor contact was more than forty-five days

after the alleged events, and that the incidents were not part of a

continuing violation. The agency further determined that claims 1 and 2

concerned �discrete, isolated employment acts which should have triggered

[complainant's] awareness.�

On appeal, complainant, through his attorney, argues that claims 1

and 2 are part of a continuing violation. Further, complainant argues

that it was not until he was involuntarily reassigned in February 1999,

that he realized that the earlier assignments of unrelated duties were

part of an ongoing effort to prevent him from remaining in his new job.

Regarding claim 3, complainant argues that the transfer states a claim

because he was moved to another location and given different duties.

In response, the agency argues that complainant's complaint was properly

dismissed for the reasons set forth in its final decision. Moreover,

the agency argues that even if the matter addressed in claim 3 stated

a claim, it should nevertheless be dismissed because it was raised by

complainant in a separate claim of settlement breach.

Claim 3

In claim 3, complainant alleges that he was discriminated against on

February 23, 1999, when he was reassigned from his position as Export

Development Specialist to the position of Assistant District Director

of 8(a) Business Development Program. While the agency dismissed claim

3 for failure to state a claim, we find that it is properly analyzed in

terms of whether it raised the same matter pending before the agency or

the Commission.

The record reflects that on March 5, 1999, approximately one week before

contacting the EEO office in the instant complaint, complainant alleged

that the agency breached a September 25, 1997 settlement agreement,

when he was reassigned from the Export Development Specialist position

in February 1999. Complainant filed an appeal with the Commission

regarding this matter, which is pending before the Commission in Appeal

No. 01994347. Accordingly, the agency's decision to dismiss claim 3

was proper and is AFFIRMED for the reasons set forth herein. See 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter cited

as 29 C.F.R. �1614.107(a)(1)).

Claims 1 and 2

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be

codified and hereinafter referred to as 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 Howard v. Department of the Navy, EEOC Request

No. 05970852 (February 11, 1999). 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.

The Commission has held that the time requirements for initiating EEO

counseling could be waived as to certain claims 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 Reid v. Department of Commerce,

EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States

Postal Service, EEOC Request No. 05901150 (December 28, 1990).

The alleged events in claims 1 and 2 occurred in October 1997 and

August 1998. Complainant did not contact an EEO Counselor until March

12, 1999, beyond the forty-five day limitation period. On appeal,

complainant contends that the claims are part of a continuing violation.

In the instant case, however, the Commission has affirmed the agency's

dismissal of the only timely claim (claim 3) for the reason set

forth above. Complainant has not otherwise identified any incident

of discrimination which fell within the forty-five days preceding

his initial EEO Counselor contact of March 12, 1999. Specifically,

the alleged matters in claims 1 and 2 occurred respectively in October

1997 and in August 1998. Therefore, complainant has not established

a continuing violation. In addition, we find that complainant has not

presented sufficient reason for waiving the timeliness requirements on

other grounds.

Accordingly, the agency's decision dismissing the complaint was proper

and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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. 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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 18, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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.