01981097
06-07-1999
Melvin S. Strohminger, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Melvin S. Strohminger, )
Appellant, )
)
v. ) Appeal No. 01981097
) Agency No. 97-0371-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
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 (ADEA) 29 U.S.C. �621 et seq. The final decision
was issued on October 22, 1997. The appeal was postmarked November
21, 1997. 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.
On January 8, 1997, appellant initiated contact with an EEO Counselor.
Informal efforts to resolve his concerns were unsuccessful.
On May 5, 1997, appellant filed a formal complaint, alleging that he was
the victim of unlawful employment discrimination on the bases of race,
sex, and age. Appellant's complaint addressed a variety of incidents of
alleged discrimination. Appellant appended to his complaint an agency
report entitled �Annual Affirmative Employment Program Accomplishment
Report for Fiscal Year 1991 & 1993 Update.� In his formal complaint,
appellant made the following statement:
�[B]ased upon the reports issued by [the agency] and recently shown to
me, I now know that my ratings and awards of the last 13 years have been
illegally kept at lower levels than females performing at the same or
lesser levels; therefore, I am claiming that my ratings for the years
1977 through 1996 should have been at the outstanding level.�
On October 22, 1997, the agency issued a final decision. Therein, the
agency found that appellant's formal complaint was comprised of five
allegations, that were identified in the following fashion:
1. SSA has been and is pursuing a systemic discriminatory policy
against all males and particularly white males in the following personnel
practices: Hiring, ratings, awards, and promotions.
2. [Appellant] was not selected for the Management Analyst, GS-343-13
position which was identified via vacancy in October 1995.
3. The complainant alleges that he has not been selected for promotion
for the last 13 years.
4. He received other than �Outstanding� annual performance ratings
between 1977 and 1996. As a result, he received either no cash award
or a lower award amount.
5. He suffered a lack of honorary awards such as Commissioner's
Citations.
The agency dismissed allegation 1 for failure to state a claim.
Specifically, the agency found that the issue therein involves
a generalized allegation of discrimination against white males over
the age of forty, relating to hiring, ratings, awards, and promotions.
The agency noted, moreover, that appellant has been an agency employee
since November 1968 and therefore has no standing with regarding to
the portion of allegation 1 relating to alleged discriminatory hiring
practices.
Regarding allegations 2 - 5, the agency dismissed these allegations for
failure to initiate contact with an EEO Counselor in a timely fashion.
Specifically, the agency noted that appellant's initial EEO Counselor
contact occurred on January 8, 1997, which was more than forty-five
days after any of the purported incidents addressed in allegations 2
- 5. Noting that appellant alleged that these matters are part of a
continuing violation, the agency further determined that allegations 2 -
5 are not part of a continuing violation because none of the alleged
incidents occurred within forty-five days of appellant's initial EEO
Counselor contact. The agency notes, moreover, that appellant had or
should have had a reasonable suspicion of unlawful discrimination at
the time that the alleged incidents occurred.
Finally, the agency notes that appellant stated that he only developed
a reasonable suspicion of unlawful employment discrimination in December
1996, when he learned from another agency employee that there were other
white male employees in his situation. The agency determined, however,
that the record contains evidence reflecting that appellant had or should
have had a reasonable suspicion of unlawful employment discrimination
at the time that the alleged incidents purportedly occurred.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. 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).
The agency dismissed allegation 1 for failure to state a claim.
The Commission finds that the matter raised in this allegation is a
generalized grievance and, therefore, fails to state a claim. Appellant
failed to identify a specific harm which he sustained. Appellant cannot
pursue a generalized grievance that members of one protected group
are afforded benefits not offered to other protected groups, unless he
further alleged some specific injury to him as a result of the alleged
discriminatory practice. See Warth v. Seldin, 422 U.S. 490 (1975);
Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508
(September 11, 1997 (allegation that nurse practitioners in one unit
received more favorable treatment than nurse practitioners in other units
was a generalzied grievance); Rodriguez v. Department of the Treasury,
EEOC Appeal No. 01970736 (August 29, 1997) (allegation that there was
an imbalance in favoring of African-Americans, against Hispanics, in
development and promotion opportunities was a generalized grievance
purportedly shared by all Hispanic co-workers and therefore failed to
state a claim). Accordingly, the agency's decision to dismiss allegation
1 was proper and is AFFIRMED.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
The agency dismissed allegations 2 - 5 for failure to timely contact an
EEO Counselor. Appellant argues that these allegations are part of a
continuing violation. The Commission has held that the time requirement
for contacting an EEO Counselor can be waived as to certain allegation
within a complaint when the complainant alleges a continuing violation,
that is, a series of related or discriminatory acts, or the maintenance
of a discriminatory system or policy before and during the filing
period. See McGiven v. USPS, EEOC Request No. 05901150 (December 28,
1990). If one or more of the acts falls within the forty-five day period
for contacting an EEO Counselor, the complaint is timely with regard to
all that constitute a continuing violation. See Valentino v. USPS, 674
F.2d 56, 65 (D.C. Cir. 1982); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (September 21, 1990). 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). It is necessary
to determine whether the acts are related by a common nexus or theme.
See Milton v. Weinberger, 645 F.2d 1070 (D.C. Cir. 1981).
The record reflects that appellant believed that he had been subjected
to discrimination through a series of discriminatory actions over a
period of decades. We note, for example, that in his formal complaint,
appellant alleged that he was improperly issued performance ratings from
1977 through 1996. In applying the continuing violation theory, one
consideration is whether a complainant had prior knowledge or suspicion of
discrimination and the effect of this knowledge. See Sabree v. United
Brotherhood of Carpenters & Joiners Local No. 33, 921 F.2d 396 (1st
Cir. 1990). The Commission described Sabree as holding that a plaintiff
who believed he had been subjected to discrimination had an obligation
to file promptly with the EEOC or lose his claim, as distinguished from
the situation where a plaintiff is unable to appreciate that he is being
discriminated against until he experienced a series of acts and is thereby
able to perceive the overall discriminatory pattern. Hagan v. Department
of Veterans Affairs, EEOC Request No. 05920709 (Jan. 7, 1993).
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
a continuing violation. See, e.g., Miller v. Shawmut Bank, 726
F. Supp. 337, 341 (D. Mass. 1989); Cogen v. Milton Bradley Co./Hasbro
Inc., 49 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).
We determine that allegations 2 - 5 are not part of a continuing
violation. Appellant initiated contact with an EEO Counselor on
January 8, 1997. The most recent incidents set forth in appellant's
allegations were not brought to the attention of an EEO Counselor within
the forty-five day limitation period. Appellant argues that he did
not realize that he was being discriminated against until her reviewed
statistical information contained in an agency report, that demonstrated
continuing systemic discriminatory practices relating to the issues
raised in allegations 2 - 5, i.e., promotions, performance ratings,
and awards. We find, however, that in light of the numerous incidents
addressed in these allegations, and the lengthy period encompassed by
allegations 2 - 5, a person should have developed a reasonable suspicion
of discrimination long before appellant initiated contact with an EEO
Counselor. Accordingly, the agency's decision to dismiss allegations
2 - 5 for failure to initiate contact with an EEO Counselor in a timely
fashion was proper and is AFFIRMED.
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:
June 7, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations