01983127
03-03-1999
Gary Impson, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Gary Impson, )
Appellant, )
)
)
v. ) Appeal No. 01983127
F. Whitten Peters, ) Agency No. 9V1M98097
Acting Secretary, )
Department of the Air Force, )
)
)
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 Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The final agency decision was dated
February 19, 1998 and March 11, 1998. The appeal was received by the
agency on March 17, 1998 and March 31, 1998. 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.
ISSUE PRESENTED
The issue on appeal is whether the agency acted properly in dismissing
part of the complaint due to untimely EEO Counselor contact and part of
the complaint for failure to state a claim.
BACKGROUND
The record indicates that on December 31, 1997, appellant initiated
contact with an EEO Counselor regarding his complaint. Informal efforts to
resolve his concerns were unsuccessful. On January 29, 1998, appellant
filed a formal complaint, alleging that he was the victim of unlawful
employment discrimination on the basis of his race (American Indian) and
reprisal when he was subjected to intensified harassment and disparate
treatment on 40 separate occasions from July 16, 1996 to December 30,
1997. The appellant asserted that these were continuing violations.
On February 19, 1998 and March 11, 1998, the agency issued a final
decision dismissing all but two of the appellant's allegations for
untimely contact with an EEO Counselor or for failure to state a claim.<1>
Neither party has filed supporting statements of their positions.
The agency found that the allegations dated July 16, 1996 through
November 14, 1997 letters "a" to "x" of paragraph 3 in the final
decision, were not brought to the attention of an EEO counselor in a
timely manner. Consequently, the agency dismissed these allegations.
The agency further dismissed the allegations outlined in paragraph 4,
letters "a" to "n", dated November 22, 1997 to December 30, 1997 in the
final decision for failure to state a claim.
ANALYSIS AND FINDINGS
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 McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989).
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 U.S. 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. 05900700 (September 21, 1990); Maldonado v. Department of the
Interior, EEOC Request No. 05900937 (October 31, 1990).
In this case, the appellant first contacted an EEO Counselor on December
31, 1997 according to the EEO Counselor's report. Within the 45 day period
preceding this date, the appellant alleged that he was not selected
for a temporary promotion to WG-11 as well as several other incidents
relating to alleged disparate discipline for tardiness. The appellant
also raised incidents outside of this period of time in which he was
allegedly subjected to disparate discipline and harassment. There was no
finding by the agency that these incidents were not continuing violations
as asserted by the appellant. Accordingly, we find that the agency
erred in dismissing these allegations for untimely counselor contact
before determining whether they constitute continuing violations.
We disagree in part with the agency that certain allegations fail to
state a claim. 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).
Here, the appellant alleges that he was the "subject of disparate
treatment" and "intensified harassment" when he was disciplined for
being tardy or harassed and others were not. Accordingly, allegations in
paragraph 4 a, b, e, g,i,j, and l outlined in the agency's final decision
state a claim in our view and should be accepted for investigation.
We agree with the agency's dismissal of allegations 4 c,d,f,h,k,m,
and n for failure to state a claim.
CONCLUSION
Accordingly, we REVERSE the agency's dismissal of allegations contained
in paragraph 3 of the final decision for untimely EEO Counselor contact
and REMAND them for a determination of whether they form a common
nexus or theme of disparate treatment and harassment of the appellant.
We REVERSE the agency's dismissal of allegations contained in paragraph 4
a,b,e,g,i,j, and l of the final decision for failure to state a claim.
They are hereby REMANDED to the agency for further investigation
consistent with the Order below. We AFFIRM the agency's dismissal of
allegations 4 c,d,f,h,k,m, and n in the final decision.
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:
March 3, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The appellant stated that he had previously filed a complaint on
October 2, 1997 raising the same allegations but neither he nor the
agency provided any documentation of this.