01976414
03-02-1999
Lamon Grier, Jr., Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Lamon Grier, Jr. v. Department of Transportation
01976414
March 2, 1999
Lamon Grier, Jr., )
Appellant, )
)
v. ) Appeal No. 01976414
) Agency No. 3-97-3057
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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 received by
appellant on August 9, 1997. The appeal was postmarked August 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 PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint as untimely and for failure to state a claim.
BACKGROUND
Appellant contacted an EEO counselor on April 16, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when:
(1) on March 19, 1997 appellant's authority was questioned regarding
filling a detail assignment;
(2) on May 28, 1995, illegal criterion was considered in connection with
his selection and placement during an office realignment;
(3) on August 7, 1994, statements that injured appellant's reputation
were made by an assistant manager
(4) on May 21, 1992 a co-worker stated her disdain for anyone who used
the EEO process to get ahead;
(5) on September 12, 1991, two co-workers made negative and derogatory
statements about appellant and his previous EEO activity.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on May 29, 1997, appellant timely filed a formal complaint
of discrimination on the bases of race (African-American) and reprisal
(prior EEO activity).
On July 30, 1997, the agency issued its final decision dismissing
appellant's complaint as untimely and for failure to state a claim.
The FAD determined that appellant failed to timely initiate EEO contact
with respect to allegations (2), (3) (4), and (5). The agency further
found that concerning allegation(1), appellant failed to demonstrate
that he was aggrieved and in turn failed to establish a valid claim of
discrimination prohibited by Title VII
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 an EEO Counselor
within forty-five (45) days of the date of the matter alleged to by
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. The Commission has
held that the normal time limit for contacting an EEO Counselor may be
suspended when a Complainant alleges facts sufficient to constitute a
continuing violation, i.e., the existence of a discriminatory system or
policy, or a series of related discriminatory acts both before and during
the filing period. John H. Rohrer v. Department of Health and Human
Services, EEOC Request No. 05940965 (April 12, 1995); Vissing v. Nuclear
Regulatory Commission, EEOC Request No. 05890308 (June 13, 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, supra. 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 has 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).
In accordance with 29 C.F.R. �1614.105(a)(1), allegation (1) regarding
questioning appellant's authority is the only timely allegation raised
in appellant's complaint. Allegations (2), (3), (4), and (5), are
untimely and concern alleged illegal conduct with respect to appellant's
assignment, and derogatory remarks about appellant allegedly made by
various individuals. The issue then before the Commission is whether the
requisite substantial relationship exists between the timely allegation
and the prior allegations made by appellant which the agency dismissed
for untimely Counselor contact.
The Commission finds that allegations (2), (3), (4), and (5) were
discrete acts, i.e., regarding alleged illegal conduct by a manger
in connection with appellant's assignment, and derogatory remarks
allegedly made by various co-workers and managers. These incidents
allegedly occurred between 1991 and 1995. We find that each of the
alleged discriminatory incidents described in allegations (2), (3),
(4) and (5), were separate and discrete incidents, which should have
triggered a suspicion of discrimination at the time they occurred.
The record indicates that different personnel/officials perpetrated
each incident in the complaint. Based on the foregoing, we find no
nexus between untimely allegations (2) through (5) and timely allegation
(1). Therefore, appellant failed to establish a continuing violation.
See Trapani v. Central Intelligence Agency, EEOC Request No. 05940037
(November 10, 1994)(holding no continuing violation when the incidents
complained of were of a different nature and involved different agency
officials. Thus, appellant's EEO contact regarding allegations (2),
(3), (4), and (5), was untimely and the agency's decision dismissing
the allegations was proper.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may
dismiss a complaint which fails to state a claim pursuant to 29
C.F.R. �1614.103. For employees and applicants for employment,
EEOC Regulation 29 C.F.R. �1614.103 provides that individual and
class complaints of employment discrimination prohibited by Title
VII (discrimination on the bases of race, color, religion, sex, and
national origin), the ADEA (discrimination on the basis of age when the
aggrieved individual is at least 40 years of age), the Rehabilitation
Act (discrimination on the basis of disability), and the Equal Pay Act
(sex-based wage discrimination) shall be processed in accordance with
part 29 C.F.R. �1614 of the EEOC Regulations.
The agency determined that appellant was not aggrieved with respect
to allegation (1) because he was not deprived of his authority as a
manager in any way when a co-worker questioned him about filling a
detail assignment. Upon review of the record, the Commission finds
that the agency's dismissal of allegation (1) was proper. We find that
appellant was not harmed with respect to a term, condition, or privilege
of employment and that he suffered no direct and personal deprivation
at the hands of the employer. See Hobson v. Department of the Navy,
EEOC Request No. 05891133 (March 2, 1990).
CONCLUSION
In accordance with the foregoing, the agency's decision dismissing
appellant's complaint as untimely and for failure to state a claim is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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:
Mar 2, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations