01983810
06-23-1999
Robert D. Perkins, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Robert D. Perkins v. Department of Transportation
01983810
June 23, 1999
Robert D. Perkins, )
Appellant, )
) Appeal No. 01983810
v. ) Agency No. DOT-5985071
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq. The FAD was dated March
13, 1998. The appeal was postmarked on April 11, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed several
allegations in appellant's complaint for untimely contact with an EEO
Counselor.
BACKGROUND
Appellant initially contacted an EEO Counselor on December 8, 1997. He
then filed a formal complaint on February 20, 1998 alleging discrimination
on the bases of age (45) and sex (male) when:
(1) on June 22, 1993, he was not selected for the position of Air
Traffic Controller, FPP-SW-93-1999, at the Little Rock Air Traffic
Control Facility;
(2) on January 4, 1995, he was not selected for the position of Area
Supervisor, 94-AT-451, at the Little Rock Air Traffic Controller
Facility;
(3) on February 7, 1996, he was not selected for the position of
Area Supervisor, 96-LIT-02, at the Little Rock Air Traffic Controller
Facility;
(4) on February 16, 1996, he was not selected for the position of
Assistant Air Traffic Manager, 96-AT-004, at the Little Rock Air Traffic
Controller Facility;
(5) on August 7, 1996, he was not selected for the position of Area
Supervisor, FPP-SW-96-AT-204, at the Little Rock Air Traffic Controller
Facility;
(6) on March 4, 1997, he was not selected for the position of Area
Supervisor, ASW-AT-97-076-15029, at the Little Rock Air Traffic Controller
Facility;
(7) on November 3, 1997, he was not selected for the position of Area
Supervisor, ASW-AT-97-318-20031, at the Little Rock Air Traffic Control
Facility.
Appellant stated in his formal complaint that "five younger people"
were selected for the 1993 position (allegation (1)). According to
appellant's statement in support of his appeal, he was given explanations
over the years for all of the non-selections which "he now believes...were
designed to avoid arousing [his] suspicion." According to appellant's
formal complaint, after he was not selected in 1997 for the position
referred to as allegation (7), he found out that the selectee was at
the FAA Academy receiving radar training. Appellant "questioned [his]
supervisor regarding this apparent lack of qualifications of the selectee.
Upon further inquiry, [he] discovered that the selectee was several
years younger than [him] and outside the protected age group of which
[appellant] is a member." Once appellant found out about the selectee's
radar training, he inquired further into the previous nonselections.
"Appellant [then] became suspicious that his non-selection may have
been the result of discrimination based on his age and in at least one
instance based on sex." All of the non-selections were for jobs at
the same facility and all of the hiring decisions were made by the same
selecting officials.
In its FAD, the agency accepted allegation (7) and dismissed allegations
(2) through (6) for untimely EEO Counselor contact. The agency did not
address allegation (1). This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days of
the effective date of the personnel action. The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) for determining whether contact with an EEO Counselor is timely.
Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Under this standard, the regulatory limitations period "is not triggered
until complainant reasonably suspects discrimination, but before all
the facts that would support a charge of discrimination have become
apparent." Bracken v. U.S. Postal Service, EEOC Request No. 05900065
(March 29, 1990).
The Commission has held that the time requirement for contacting an EEO
Counselor can be waived as to certain allegations within a complaint
when the complainant alleges a continuing violation, that is, a series
of related discriminatory acts, one of which falls within the time
period for contacting an EEO Counselor. See McGivern v. USPS, EEOC
Request No. 05901150 (December 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, 715 F.2d 971, 981 (5th Cir. 1983) cert. denied, 479 US. 868
(1986). It is necessary to determine whether the acts are interrelated by
a common nexus or theme. See Vissing v. Nuclear Regulatory Commission,
EEOC Request NO. 05890308 (June 13, 1989); Verkennes v. Department of
Defense, EEOC Request No. 05900937 (October 31, 1990). Should such a
nexus exist, appellant would 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 (October 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. Jackson v. Department
of the Air Force, EEOC Request No. 05950780 (June 27, 1997). See Sabree
v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d
396 (1st Cir. 1990).
We agree with the agency that allegations (2) through (6) were untimely.
We find, however, that they were part of a continuing violation. We base
that decision on the fact that: 1) the allegations are interrelated
in that they are all nonselections by the same selecting officials
at the same facility; and 2) appellant did not have a reasonable
suspicion that he had been discriminated against in the non-selections
prior to 1997. Appellant continually inquired as to why he was not
selected. The explanations did not raise a suspicion of discrimination.
Once appellant suspected discrimination in 1997, he then timely filed a
formal complaint. We find it plausible that, prior to 1997, appellant
did not have enough information to suspect discrimination.
The Commission notes that the agency failed to address allegation (1),
and the Commission deems the agency's action to be tantamount to a
dismissal of that matter. Appellant's submissions on appeal, as well
as his formal complaint reveal that he clearly raised the matter. We,
therefore, find that allegation (1), although untimely, is also part of
the continuing violation.
CONCLUSION
We, therefore, VACATE the agency's decision with respect to allegations
(1) through (6) and REMAND those allegations in accordance with the
ORDER below.
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 allegations 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:
June 23, 1999
______________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations