01982694
03-10-1999
Robert P. Nemitz, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration)) _________________________________)
Robert P. Nemitz, )
Appellant, )
)
v. ) Appeal No. 01982694
) Agency No. 1981037
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
(Federal Aviation Administration)) Agency. )
_________________________________)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or 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. and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq.. The Commission hereby accepts the
appeal in accordance with EEOC Order No. 960, as amended.
The issue on appeal is whether the agency properly dismissed the
appellant's complaint, pursuant to 29 C.R.R. �1614.107(a), for failure
to state a claim, and also for failure to sustain a claim of a continuing
violation.
Based on a review of the record, we find that the agency properly
dismissed appellant's entire complaint. Allegation 1 was dismissed
for failure to state a claim, pursuant to 29 C.F.R. �1614.107(a) upon a
finding that appellant was not an �aggrieved employee�; and, allegation 2
was dismissed for failure to establish a claim of a continuing violation.
Appellant alleges that he was discriminated against on the bases of color
(white), and physical disability (unspecified), when he did not make
the Best Qualified List when he applied for a position under Vacancy
Announcement ANE-AAF97-108-17244, in October, 1997. He further alleges
that he has consistently failed to make the Best Qualified List for all
positions he has applied for dating back to 1989. Appellant contends
that he is deliberately not placed on the Best Qualified List because
the hiring preference accorded to his status as a disabled veteran would
result in his selection over the other candidates on the Best Qualified
List, especially female and minority candidates.
Allegation 1
In both its FAD, and on appeal, the agency states that the appellant is
not aggrieved because Vacancy Announcement AAF97-108-17244 was canceled
and no one was selected for the position. Appellant does not contend
that the cancellation was based on discriminatory motives.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails 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 experiences 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).
In addressing an allegation very similar to this allegation 1, the
Commission, in Heath v. Department of Defense, EEOC Appeal No. 01931470,
request for reconsideration denied, EEOC Request No. 05931005 (Feb. 17,
1994), found that the appellant was not �aggrieved� because she failed
to allege that the position was canceled in a discriminatory manner.
In Heath, just as in the instant complaint, the appellant alleged
discrimination when she did not make the Best Qualified List, but the
position was canceled by the agency and no selection was made. The
Commission held that there is no direct harm which affected a term,
condition or privilege of employment under these circumstances unless
the appellant alleges that the cancellation was based on a discriminatory
motive. As noted, the appellant here fails to make this allegation.
Accordingly, we find that the appellant failed to shown that he is an
aggrieved employee within the meaning of the law and regulations cited
above, and that the agency's decision to dismiss the complaint for
failing to state a claim was proper and is AFFIRMED.
Allegation 2
Appellant further alleges that he is routinely and deliberately excluded
from the Best Qualified List each time he applies for a position at the
agency. He alleges that the exclusion is based on discriminatory motives,
and that this constitutes a continuing violation dating back to 1989.
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). Should such
a nexus exist, appellant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D. D.C. 1978).
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 had 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).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge. Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
Although it is certainly arguable that appellant had reason to suspect
discrimination at the time of his prior exclusions from the Best Qualified
List given that he appears to have filed a grievance or EEO complaint
concerning each instance, the instant allegation fails because allegation
1 fails to state a claim. As noted above, a claim of a continuing
violation can only be sustained if one of the alleged discriminatory
acts fell within the time period for contacting an EEO Counselor.
The �nexus� analysis described above focuses on whether the present act
of alleged discrimination is sufficiently connected to prior acts to
find a continuous pattern of discrimination. Here, we have determined
that allegation 1 is not actionable, so that there is no present act,
i.e. there are no alleged discriminatory acts falling within the 45 day
EEO Counselor contact time period. Without an actionable claim of a
present act, a nexus cannot be established, and a claim of a continuing
violation cannot, on its face, be maintained.
Accordingly, we find that the appellant failed to establish the necessary
elements to sustain a claim of a continuing violation, within the meaning
of the law and regulations cited above, and that the agency's decision
to dismiss the complaint was proper and is AFFIRMED.
Accordingly, we AFFRIM the FAD.
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.
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.F.R.).
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 10, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations