01984982
08-20-1999
Syed S. Zahid, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Syed S. Zahid v. Department of the Army
01984982
August 20, 1999
Syed S. Zahid, )
Appellant, )
)
v. ) Appeal No. 01984982
) Agency No. PI9804I0060
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
INTRODUCTION
For the reasons discussed below, the Commission modifies the agency's May
11, 1998 final decision (FAD),<1> which partially dismissed appellant's
April 3, 1998 formal EEO complaint for untimely EEO Counselor contact,
pursuant to 29 C.F.R. �1614.107(b).<2> We are not persuaded by appellant's
timely appeal of June 5, 1998, or the agency's response to his appeal,
either to sustain the FAD in its entirety or vacate it completely.
BACKGROUND
As a threshold matter, the Commission notes a lack of clarity in
the record on appeal and certain deficiencies in the FAD, which we
also discuss infra. Based on a fair reading of appellant's formal
EEO complaint, and the record as a whole, the Commission finds that
appellant, a GS-11 Civil Engineer with the Army Corps of Engineers, in
Galveston, Texas, alleged that the agency discriminated against him
based on national origin (Asian) and reprisal in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq.; and physical disability (blind in one eye, and end stage renal
failure secondary to hypertension), in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq., when
he was subjected to harassment; nonselected for promotion to any of six
vacant GS-12 positions or promoted to grade 12, despite doing grade 12
work; and denied reasonable accommodation in his work schedule.
The FAD accepted one allegation for investigation, as follows:
Appellant was discriminated against on the basis of national origin
(Asian) when, since January 2, 1998, he did not receive a grade 12
promotion and grade 12 pay, despite being assigned grade 12 work, since
January 2, 1998.
The FAD dismissed appellant's remaining allegations. The FAD found that
appellant's February 6, 1998 EEO Counselor contact was untimely concerning
issues dating back to 1987.
CONTENTIONS ON APPEAL
On appeal, appellant and his representative contend that appellant's
allegations rise to the level of a continuing violation. Appellant also
argues that he relied on agency representations, concerning future
promotions, to his detriment. In response to appellant's appeal, the
agency rejects appellant's reliance on the continuing violation theory
and cites his prior EEO experience. In addition, the agency denies
appellant's assertion that he was misled. We also note the agency,
improperly, argues the merits of appellant's complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory. The 45 day time
limit shall be extended when appellant shows that s/he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred. 29 C.F.R. �1614.105(a)(2). In addition,
29 C.F.R. �1614.604(c) provides that time limitations "are subject to
waiver, estoppel and equitable tolling." The Commission has applied a
"reasonable suspicion" standard to the triggering date for determining
the timeliness of the contact with an EEO Counselor. Cochran v. United
States Postal Service, EEOC Request No. 05920399 (June 18, 1992).
Under this standard, the time period for contacting an EEO Counselor is
triggered when the complainant should reasonably suspect discrimination,
but before all the facts that would support a charge of discrimination
may have become apparent. Id.
The Commission has held that, where, as here, there is an issue of
timeliness, "[a]n agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness." Guy,
Jr. v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 1992)). Moreover, where, as here, a complainant alleges
a pattern and practice of discrimination against him, an agency is
obligated to initiate an inquiry into whether any allegations untimely
raised fall within the ambit of the continuing violation theory. Id.
The Commission has determined that the normal time limit for contacting an
EEO Counselor may be suspended if a continuing violation is demonstrated.
Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308 (June
13, 1989). A continuing violation has been defined as a series of related
acts, one or more of which falls within the limitations period. Valentino
v. U.S. Postal Service, 674 F.2d 56 (D.C. Cir. 1982); Clark v. Olincraft,
Inc., 556 F.2d 1219 (5th Cir. 1977), cert. denied, 434 U.S. 1069 (1978).
To establish a continuing violation, one must show a "long-lasting
pattern of like events" similar to a policy of discrimination (albeit
directed against a single individual). Shehedah v. Chesapeake and
Potomac Telephone Co. of Maryland, 595 F.2d 711, 725 (D.C. Cir. 1978)
(defendant repeatedly provided negative references on former employee).
It is also important, in determining whether a claim for a continuing
violation is stated, to consider whether appellant had any prior knowledge
or suspicion of discrimination and the effect of this knowledge.
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 the overall discriminatory pattern). The key to a viable
continuing violation complaint is the interrelatedness of the acts that
are alleged to be discriminatory. Scott v. Claytor, 469 F.Supp. 22, 25
(D.D.C. 1978). In a failure to promote case such as this, for example,
the necessary interrelatedness may be established by showing, e.g., that
the positions sought were the same or substantially similar and that
the same officials were involved in the selections. Scott v. Claytor,
supra, 469 F. Supp. at 26.
Finally, we note that, in Berry v. Board of Supervisors of L.S.U.,
715 F.2d 971, 981 (5th Cir. 1983), the Court set forth three factors
relevant to the determination of whether a continuing violation exists:
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? [Footnote omitted.]
In the present case, we find the agency improperly defined appellant's
allegations of harassment in piecemeal fashion. Meaney v. Department
of the Treasury, EEOC Request No. 05940169 (November 3, 1994). However,
we find this error to be harmless since we find no evidence, or even an
allegation by appellant or his representative, of any act of alleged
harassment occurring within 45 days of appellant's February 6, 1998
EEO Counselor contact. Indeed, we find appellant cites 1994 as the most
recent event of alleged harassment. We also find, in this regard, that
the allegations of harassment are not interrelated with his nonselection
claims, which nonselections we find to be discrete events with a degree
of permanence that would cause a reasonable person to suspect he or
she was being discriminated against. In this respect, we further find
that appellant believed he had been discriminated against by the agency
dating back to the 1980s and had, in fact, filed a prior EEO complaint
alleging harassment, according to appellant's and his representative's
own arguments on appeal.
We are, therefore, not persuaded by appellant's assertions that he "had
no reason to believe he was a victim of discrimination until a series
of adverse actions established a visible pattern of discriminatory
mistreatment." We further find appellant has provided insufficient
evidence for us to infer that he was a victim of systemic discrimination,
as he appears to argue on appeal.<3> Thus, we conclude that appellant's
reliance on the continuing violation theory is misplaced. Dudar v. Social
Security Administration, EEOC Request No. 05950647 (December 11, 1997).
In addition, in the present case, we find appellant has provided
insufficient evidence for us to determine that he was misled by the
agency so that the agency should be equitably estopped from asserting a
timeliness defense to appellant's allegations. Jackson v. United States
Postal Service, EEOC Appeal No. 01931557 (February 17, 1994). We find,
in fact, to the contrary, in the present case. Appellant himself concedes
that he spoke with each selecting official after his nonselections as to
why he was not selected, all to no avail. "I would talk to them again
and be put off again. I am now doing [GS-12] work and have been for
some time, but I am still a [GS-11]," appellant alleged in his response
to the EEO Officer's request for more specific information. It is well
settled that, as a general proposition, internal efforts by a complainant
to resolve EEO matters will not toll the applicable time period
for initiating EEO counseling. Schermerhorn v. U.S. Postal Service,
EEOC Request No. 05940729 (February 10, 1995) (negotiated grievances).
Therefore, we find appellant did not act with due diligence in pursuing
those EEO allegations the FAD dismissed, concerning purported harassment
and failure to promote, and may not rely on equity to revive stale claims.
Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984)(per curiam);
Rys v. U.S. Postal Service, 886 F.2d 443 (1st Cir. 1989).
In reaching our conclusions in the present case, we have also considered
the failure of the agency in the FAD to identify properly appellant's
six nonselections as specific issues. Smith v. U.S. Postal Service,
EEOC Request No. 05921017 (April 13, 1993). We again find harmless
error, however, because we find that none of appellant's six identified
nonselections falls within 45 days of his February 6, 1998 EEO Counselor
contact. We find, in this regard, that, in a letter dated June 9,
1997, appellant advised the agency that he merited a GS-12 promotion
(or, alternatively, an audit) because he had been doing GS-12 work for
a "number of years." At the conclusion of his June 11, 1997 letter,
and immediately following it in the record on appeal, we find that
appellant had prepared a list of six specific nonselections for vacancies
dated from 1990 to and including 1996. Although we find no support in
the record for the FAD's determination, in pertinent part, that "[t]he
earliest [vacancy] announcement listed is SWG 03-97 for which [appellant]
received notice that the position was canceled on 21 Feb[ruary] [19]97,"
we have found, from our review of the record as a whole, and appellant's
failure on appeal to contravene the agency's finding regarding SWG 03-97
(a vacancy announcement appellant indicated was dated October 15, 1996),
that appellant knew or should have known of all six nonselections months,
if not years, before his February 6, 1998 initial EEO Counselor contact.
However, we are remanding this matter because we find the agency has
failed to meet its burden of providing a sufficiently clear record,
particularly with regard to the question of timeliness, pertaining to
the issue of the alleged failure of the agency to provide appellant with
reasonable accommodation. Henry v. U.S. Postal Service, EEOC Request
No. 05940897 (May 18, 1995); Hines v. U.S. Postal Service, EEOC Appeal
No. 01923566 (May 13, 1993); Guy v. Department of Energy, supra. We
find, in this respect, that, in the present case, appellant and his
representative have contributed to this record's inadequacy by their
failure to respond with sufficient specificity and clarity to requests
by the EEO Officer for more detailed information.
In this regard, we again find the agency improperly identified the issues
in appellant's complaint. Smith v. U.S. Postal Service, supra. However,
we once more find to be harmless error the agency's identification,
as separate issues, appellant's allegations that, e.g., his physician
had to write a letter to the agency pertaining to appellant's alleged
stress, and the agency's compelling appellant to be in a different work
schedule as harassment, respectively. We find these issues to be either
of an evidentiary nature or subsumed in appellant's other claims.
With regard to the question of reasonable accommodation, we find
appellant's claims to be vague and ambiguous. To reiterate, we find
appellant appears to claim that he was removed from a flexible schedule,
which, apparently, permitted him to undergo hemodialysis three times a
week, and was compelled to work "�normal hours'" in 1992. However, the
Commission is unable to determine for a timeliness assessment, either
from the record or appellant's arguments on appeal, whether and for
how long the agency allegedly denied appellant reasonable accommodation.
Such an allegation might be timely if the agency placed and kept appellant
on a work schedule other than the one he had requested for reasonable
accommodation, for a period of time beyond 1992. Mitchell v. Department
of Commerce, EEOC Appeal No. 01934120 (March 4, 1994)(failure to provide
reasonable accommodation creates recurring violation).
Finally, we find the agency improperly dismissed appellant's reprisal
and disability bases of discrimination with regard to the issue the
agency accepted for investigation in the present case. Upon remand,
the agency shall investigate those bases of discrimination as part of
appellant's accepted allegation that he was not promoted to a GS-12
level despite his purportedly doing GS-12 work.
CONCLUSION
Having reviewed the record in its entirety, the arguments on appeal
including those not expressly addressed herein, and for the foregoing
reasons, the Commission hereby AFFIRMS the FAD, in part; and VACATES the
FAD, in part. The FAD's dismissal of appellant's allegations pertaining
to harassment and his nonselections are hereby AFFIRMED. Appellant may,
however, introduce evidence pertaining to those allegations in support
of his accepted claim by the agency. The FAD's dismissal of his physical
disability and reprisal bases of discrimination; and the FAD's dismissal
of his claim that the agency denied him reasonable accommodation when
it changed his work schedule, are hereby VACATED. Appellant's complaint
is hereby REMANDED to the agency in accordance with this decision and
applicable regulations. The parties are advised that the Commission's
decision in this matter is not a decision on the merits of appellant's
complaint. The agency is hereby directed to comply with the Commission's
ORDER set forth below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall, with the cooperation of appellant and his
representative, obtain a statement from appellant, under oath or
affirmation, as to whether appellant is alleging the following: from 1992
to a specified date, the agency denied appellant reasonable accommodation
by forcing him to comply with a work schedule that was contrary to his
request for reasonable accommodation of his stated disability.
2. Thereafter, the agency shall issue a letter of acceptance of
appellant's allegation of disability discrimination pertaining to
his work schedule, and the alleged failure of the agency to provide
reasonable accommodation. Alternatively, the agency may again dismiss
this allegation. However, the agency's dismissal must be contained in a
final decision with appeal rights to the Commission. The final decision
must identify the issue dismissed, the legal grounds for dismissal,
the factual bases of dismissal, and any and all documents relied upon.
3. The agency shall investigate the bases of reprisal and disability
in connection with the accepted allegation involving his non-promotion
to a GS-12 level despite his purportedly doing GS-12 work.
4. The supplemental investigation and issuance of the letter of acceptance
or final decision, referenced in instruction (2) above, must be completed
within thirty (30) calendar days of the date this decision becomes final.
A copy of the letter of acceptance or final decision must be submitted
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The Commission views with great concern the fact that the FAD in this
case was signed by an Equal Employment Opportunity (EEO) Officer. Such an
action is inconsistent with the role of the agency's EEO function to be
neutral and impartial, in accordance with the Commission's Management
Directive for 29 C.F.R. Part 1614: EEO MD-110 (October 22, 1992), and
jeopardizes the integrity of the process in which employees must have
confidence. We note, in this regard, the EEO Officer's statement in the
FAD, in pertinent part, directed at appellant as follows: "You were not
prevented from contacting me within the time limits" (emphasis added).
2We note, for the record, appellant's claim for compensatory damages in
this case.
3The parties are advised that the Commission's finding should not be
construed as a finding on the merits of appellant's complaint.