01984697_r
08-20-1999
William C. Boyd, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
William C. Boyd, )
Appellant, )
)
v. ) Appeal No. 01984697
) Agency No. DOT 2-98-2023
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On June 3, 1998, appellant filed a timely appeal of a May 6, 1998 final
agency decision dismissing two allegations of his complaint for failure
to contact an EEO Counselor in a timely manner.
In its final decision, the agency identified the allegations of
appellant's complaint as whether appellant was discriminated against
on the bases of sex and retaliation and treated disparately regarding
the following:
Assigning appellant's work, verifying the status, and discussing
substantial issues regarding appellant's assignments, from November 1996
to date, through a third person in the office who is junior to appellant;
Not providing appellant with information in October 1997, regarding a
conference on air fares in Washington, D.C., and appellant missed the
opportunity to attend;
Appellant's supervisor failed to follow procedures regarding appellant's
performance appraisal rating for 1996, for which appellant filed an
administrative grievance on December 1996; and
Appellant was not given equal treatment with respect to work rules and
arrangement. Specifically, appellant alleged that two years prior he
was initially denied the opportunity to work an alternative work schedule.
The agency accepted allegations (a) and (b) and dismissed allegations
(c) and (d). In dismissing allegations (c) and (d), the agency noted
that appellant did not initiate EEO Counselor contact until October 10,
1997, which was beyond the 45-day period required for timely EEO contact
and that appellant failed to provide justification sufficient to extend
the time limit.
On appeal, appellant asserts that the dismissed allegations were part
of a continuous pattern of disparate treatment and mistreatment by
his supervisor and that, although the treatment began in 1995, he
was not aware that he was subjected to disparate treatment until he
received a September 5, 1997 Memorandum from the agency and copies of
the performance evaluations of other employees pursuant to a Freedom
of Information Act (FOIA) request. Appellant also asserts that when
employees have a problem with management, employees were encouraged to
pursue administrative remedies and that he did so by filing grievances.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the 45-day limitation period is triggered. See Ball v. U.S. Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation
period is not triggered until a complainant should reasonably suspect
discrimination, but before all the facts that would support a charge
of discrimination have become apparent. When a complainant has some
reason to support the belief that prohibited discrimination has occurred,
contact with a Counselor must occur. Complainants are required to act
with due diligence in pursuit of their claims. See Sapp v. U.S. Postal
Service, EEOC Request No. 05950666 (May 31, 1996); O'Dell v. Department
of Health and Human Services, EEOC Request No. 05901130 (December 27,
1990). Waiting until one has proof of discrimination before initiating
a complaint can result in untimely contact. See Bracken v. U.S. Postal
Service, EEOC Request No. 05900065 (March 29, 1990).
The Commission has held that existence of a continuing violation can
extend the 45-day limitation period for contacting an EEO counselor.
See McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December
28, 1990). However, a complainant who believes he or she has been
subjected to discrimination has an obligation to file promptly with
the EEOC or lose the claim, as distinguished from the situation where a
plaintiff is unable to appreciate that he or she is being discriminated
against until he or she 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 (January 7, 1993).
Upon review, the Commission finds that the agency's dismissal of
allegations (c) and (d) was proper and appellant has not provided
sufficient justification for the time period to be extended. The record
reveals that allegations (c) and (d) occurred in 1996. Appellant does not
argue that he was unaware of the applicable time limit. Appellant also
does not dispute that he did not initiate EEO Counselor contact until
October 1997. Accordingly, appellant's EEO contact was untimely.
Regarding allegation (c), the Commission rejects appellant's assertion
that he was unaware of the agency's discriminatory application of
evaluation procedures regarding his 1996 performance evaluation until
September 1997, when he received a September 5, 1997 Memorandum from
the agency, a copy of which is contained in the record. Instead,
the Commission finds that appellant knew at least by December 1996,
that the evaluation procedures were allegedly being applied to him in
a discriminatory manner. The record contains a copy of appellant's
December 19, 1996 grievance in which he states that his office failed to
administer the performance appraisal system properly and this failure
to administer the program in a consistent manner created an "unfair
and unequal" process. Appellant's grievance also reveals that he was
advised that the Personnel Office was not going to intervene nor require
that his office correct what appellant described in his grievance as
inconsistent, "unequal [and] discriminatory behavior" in his unit.
As relief in his grievance, appellant requested, among other things,
that his office adhere to policies governing performance evaluations
for all employees and that the Personnel Office implement a program to
ensure that policies regarding performance appraisals were followed.
In addition in his complaint, appellant alleged that during the past
three years, he brought problems with his supervisor to the attention
of senior management. Appellant met with a Deputy Assistant Secretary
in September 1995, August 1996, December 1996, and September 1997, and
that in August 1996, he advised the Deputy Assistant Secretary that the
situation in his office was affecting his health. Appellant also met
with an Assistant Secretary in February 1997. Therefore, it is clear
that appellant had a reasonable suspicion of discrimination months prior
to his October 1997 EEO contact.
Even assuming that appellant did not have a reasonable suspicion of
discrimination of the evaluation process by December 1996, appellant
should have had a reasonable suspicion of discrimination by March 1997,
at the latest. In a March 25, 1997 letter to the Assistant Secretary,
appellant again raised the "unfair" and "unequal" treatment he received
regarding the evaluation process. Moreover, in his complaint, appellant
states that in May 1997, he filed a FOIA request for copies of performance
ratings for all employees in his office and received the ratings in
June 1997, pursuant to his FOIA request. Appellant's complaint also
reflects that on July 1, 1997, appellant wrote the agency and stated in
a Memorandum to the agency that his performance evaluation was the only
evaluation not "properly handled" by the agency. Appellant's contact in
October 1997, was therefore untimely. Appellant cannot avail himself of
the continuing violation theory because he had a reasonable suspicion of
discrimination regarding the performance evaluation process, as applied to
his 1996 evaluation, several months prior to his October 1997 EEO contact.
Regarding allegation (d), the record reflects that in March 1996,
appellant's request for a compressed workweek under the alternative work
schedule was denied by his supervisor and appellant filed a grievance.
The Commission finds that appellant's October 1997 EEO contact was
untimely because appellant had a reasonable suspicion of discrimination
in March 1996. In his March 14, 1996 grievance, appellant stated that
the denial of his compressed workweek request was "discriminatory"
and constituted "unfair and unequal treatment," whereas other employees
were allowed to work alternative work schedules. Also, in his appeal,
appellant states that in March 1996, he wrote to the agency's Assistant
Secretary regarding his concerns about the alternate work schedule policy.
Appellant also states on appeal that prior to sending the letter to the
Assistant Secretary, he met with the agency's office of Human Resources
and discussed his concerns regarding the alternative work schedule and
how it was being applied. Accordingly, appellant's contact was untimely.
The continuing violation theory is not applicable since we found that
appellant suspected discrimination in March 1996.
Finally, the Commission notes that appellant pursued internal agency
procedures prior to initiating EEO contact. The Commission has
consistently held that utilization of internal agency procedures and
other remedial processes does not toll the time limitations period for
contacting an EEO Counselor. See Kramer v. U.S. Postal Service, EEOC
Appeal No. 01954021 (October 5, 1995); Williams v. U.S. Postal Service,
EEOC Request No. 05910291 (April 25, 1991).
Consistent with the foregoing discussion, the agency's final 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 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations