01974496
03-18-1999
Joan W. Holt, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Joan W. Holt v. Department of the Army
01974496
March 18, 1999
Joan W. Holt, )
Appellant, )
)
v. ) Appeal No. 01974496
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her 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 Rehabilitation Act of 1973, as amended, 29
U.S.C. �791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. �621 et seq. The final agency decision
was received by appellant on May 1, 1997. The appeal was postmarked May
20, 1997. 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 ON APPEAL
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of failure to contact an EEO Counselor in a
timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on November 12, 1996.
She filed a formal complaint on March 12, 1997, alleging that she was
discriminated against on the bases of race (Caucasian), color (white),
sex (female), physical disability (work related asthma), age (58 years),
and reprisal (for prior EEO activity) in that she was issued memoranda
dated: (1) October 12, 1995, requiring her to provide a doctor's statement
upon each sick leave absence; 2) October 20, 1995, charging her absence
without pay for failure to provide a doctor's statement; 3) February
2, 1996, charging her with absence without approved leave; 4) February
13, 1996, reprimanding her for failure to provide a doctor's statement
verifying illness; 5) she was subjected to a hostile work environment on
February 5, 1996; and, 6) she was precluded from speaking with members
of her chain of command on February 6, 1996.
The agency dismissed this complaint on the grounds of failure to contact
an EEO counselor in a timely manner. The agency stated that appellant
had named the February 13, 1996 incident as the latest incidence of
discrimination but appellant had waited some 275 days until November
14, 1996 to make EEO contact. The agency dismissed the complaint
for failure to comply with the forty-five (45) day time limitation for
counselor contact.
On appeal, appellant submits that she had made counselor contact within
thirty-two (32) days of the October 18, 1996 incident of discrimination,
and even though the rest of the events mentioned in the complaint occurred
before this date, they are all part of the same transaction.
ANALYSIS AND FINDINGS
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. USPS,
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.
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 establishes a continuing violation, that is, a series of
related or discriminatory acts, or the maintenance of a discriminatory
system or policy before and during the filing period. See McGiven v. USPS,
EEOC Request No. 05901150 (December 28, 1990). If one or more of the acts
falls within the forty-five day period for contacting an EEO Counselor,
the complaint is timely with regard to all that constitute a continuing
violation. See Valentino v. USPS, 674 F.2d 56, 65 (D.C. Cir. 1982);
Verkennes v. Department of Defense, EEOC Request No. 05900700 (September
21, 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). It is necessary to determine whether the acts are
related by a common nexus or theme. See Milton v. Weinberger, 645 F.2d
1070 (D.C. Cir. 1981).
Based on a thorough review of the record, the Commission finds that the
agency properly dismissed appellant's allegations involving incidents
occurring between October 1995 and February 1996 on the grounds of
untimely counselor contact. We find that appellant should have had
a reasonable suspicion of discrimination at the time these incidents
occurred. Thus, these issues were properly dismissed for untimely
counselor contact. Accordingly, the final agency 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. 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:
March 18, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations