01990752
08-31-1999
Raymond W. German, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Raymond W. German v. Department of Transportation
01990752
August 31, 1999
Raymond W. German, )
Appellant, )
)
v. ) Appeal No. 01990752
) Agency No. 1-98-1092
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On October 30, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on October 13, 1998,
pertaining to 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 (ADEA), as amended, 29 U.S.C. �621 et seq. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of sex (male) and age (51) when:
In October 1997, appellant was not selected for the position of Manager,
Boston ARTCC, Washua, NH, under vacancy announcement NSP-97-NE-063; and
In April 1998, appellant was not selected for the position of Manchester,
NH Hub Manager, under vacancy announcement NSP-98-NE-026.
The agency accepted allegation (2), but dismissed allegation (1) pursuant
to EEOC Regulation 29 C.F.R. �1614.107(b), for untimely counselor
contact.
On appeal, appellant argues that he contacted the Office of Regional
Counsel the same day that he learned of his non-selection for
vacancy announcement NSP-97-NE-063. Appellant contends that he spoke
with an officer with the FAA Office of Civil Rights later that day.
Appellant admits that he did not contact an EEO Counselor until after
the nonselection raised in allegation (2), but argues that neither
the Regional Counsel nor the Office of Civil Rights referred him to
an EEO Counselor. Appellant alleges a continuing violation. Appellant
notes that the FAA Office of Civil Rights is not directly connected to
the agency Office of Civil Rights, and that the FAA Office only handles
affirmative action implementation and compliance, while the agency Office
employs counselors and investigators for EEO complaints.
In response, the agency admits that appellant spoke with a deputy FAA
Regional Counsel and with a member of the FAA Office of Civil Rights
staff, but notes that appellant did not contact an EEO Counselor until
almost a year later. The agency argues that as a former high level
management employee, appellant should be aware of the requirement to
contact an EEO Counselor, and that appellant's duties included directing
subordinates who believed they were aggrieved to the correct EEO official
for counseling. Given appellant's experience, the agency argues,
appellant's contact with the Regional Counsel and FAA Office of Civil
Rights should not suffice for initial counselor contact. The agency
also contends that appellant's management experience at least gives
him constructive knowledge of the time limits. Regarding appellant's
allegation of a continuing violation, the agency argues that appellant's
nonselection was an event that should have triggered an awareness of
the duty to seek counseling.
The agency appended an affidavit from an EEO officer to its brief,
which stated that EEO information, including the names and phone numbers
of all EEO counselors, are prominently displayed at each FAA facility.
According to the affidavit, the information also is included in the FAA
telephone directory. Appellant denied ever seeing an EEO posting at an
FAA job site, and explained that after receiving a copy of the affidavit,
he searched for, but did not find, the EEO posters in five (5) different
agency facilities. Appellant also questions why he was never referred
to a counselor by the Regional Counsel or FAA Civil Rights Officer.
A review of the record reveals that, in his undated formal complaint,
appellant believed "based upon advice received, that this contact [with
Regional Counsel and FAA Office of Civil Rights] would suffice to ensure
my rights were safeguarded." However, appellant never elaborated on
what advice he received. The Counselor's Report, dated June 26, 1998,
lists appellant's date of initial counselor contact as May 11, 1998.
The report also explains that appellant "stop[ped] by" the Office of
Civil Rights to discuss his concerns with a Civil Rights Officer, but
did not contact a counselor nor file an EEO complaint at that time.
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. United
States Postal Service, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
A complainant commences the EEO process by contacting an EEO Counselor
and "exhibiting an intent to begin the complaint process." See Gates
v. Department of Air Force, EEOC Request No. 05910798 (Nov. 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194 (May
24, 1990)). For purposes of timeliness, contact with an agency official
who is "logically connected with the EEO process" is deemed a Counselor
contact. Jones v. Department of the Army, EEOC Request No. 05900435
(Sept. 7, 1990); see Kemer v. General Services Administration, EEOC
Request No. 05910779 (Dec. 30, 1991).
The Commission finds that appellant held prior management positions,
from which some knowledge of the EEO process can be imputed. See
Lagana v. Department of Navy, EEOC Appeal No. 01962557 (Jan. 8, 1997)
(knowledge of time limits is imputed to a labor relations specialist
who must advise management of EEO complaints); cf. Kemer v. General
Services Administration, EEOC Request No. 01910779 (Dec. 30, 1991)
(letter to member of upper management that in effect requested counseling,
is timely EEO contact); Morgan v. Department of Agriculture, EEOC Appeal
No. 01971556 (Feb. 13, 1998) (manager is person logically connected with
EEO process for purposes of timeliness � management has responsibility
to direct aggrieved subordinates to EEO counselor). Nonetheless,
appellant's discussion with the Regional Counsel was contact with an
official logically connected with the EEO process. Although appellant
met with officials logically connected to the EEO process, he failed to
establish an intent to begin the EEO process at that time. See Ellard
v. Department of Veteran's Affairs, EEOC Appeal No. 01964182 (Jan. 16,
1997), rev. denied EEOC Request No. 05970483 (May 22, 1997) (letter to
upper management, while to person logically connected to EEO process,
did not exhibit intent to begin complaint); Allen v. United States Parcel
Service, EEOC Request No. 05950933 (July 8, 1996) (A letter written to a
person logically connected with the EEO process that broadly complains of
discrimination, but fails to exhibit an intent to begin the EEO complaint
process, does not constitute initial counselor contact for purposes of
timeliness). Therefore, the Commission finds that appellant initially
contacted a counselor on May 11, 1998.
In its final decision, the agency failed to consider the question
of a continuing violation. The Commission has held that where the
agency failed to consider this issue, the case must be remanded for
consideration of the issue of a continuing violation and issuance of a new
FAD making a specific determination under the continuing violation theory.
Guy v. Department of Energy, EEOC Request No. 05930703 (Jan. 4, 1994).
However, on appeal, the agency argues that appellant's complaint does
not constitute a continuing violation in its final decision. Though the
agency did not address the issue of continuing violation in its FAD,
we find that it would be futile to remand appellant's complaint for
consideration of this issue, as it has been addressed by the agency on
appeal. Therefore, we will determine whether the dismissed allegations
constitute a continuing violation.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations 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 (Apr. 22, 1999); McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (Dec. 28, 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 of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).
It is necessary to determine whether the acts are interrelated by a common
nexus or theme. See Maldonado v. Department of the Interior, EEOC Request
No. 05900937 (Oct. 31, 1990); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (Sept. 21, 1990); Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989). Should such
a nexus exist, appellant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (Oct. 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
See Jackson v. Department of the Air Force, EEOC Request No. 05950780
(June 27, 1997); see also Sabree v. United Brotherhood of Carpenters
and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990) (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 has lived through a series of acts and
is thereby able to perceive an overall discriminatory pattern).
The Commission finds that appellant's nonselection is an event with a
degree of permanence which should have triggered appellant's obligation
to file a complaint. See Jackson v. Department of the Air Force, EEOC
Request No. 05950780 (June 27, 1997); Anvari v. Department of Health and
Human Services, EEOC Request No. 05930157 (June 17, 1993). Further,
appellant admits his suspicion of discrimination in October 1997.
Therefore, allegation (1) is not part of a continuing violation, and
does not excuse appellant's untimely counselor contact.
CONCLUSION
Accordingly, the agency's decision 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. 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:
August 31, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations