01983255
03-16-1999
Thomas J. Hoffman, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Thomas J. Hoffman v. Department of Agriculture
01983255
March 16, 1999
Thomas J. Hoffman, )
Appellant, )
)
v. ) Appeal No. 01983255
) Agency No. 980171
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
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., and the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. �621 et seq. The final agency decision was
received by appellant on March 13, 1998. The appeal was postmarked March
21, 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 properly dismissed a portion
of appellant's complaint for failure to timely initiate contact with an
Equal Employment Opportunity (EEO) Counselor.
BACKGROUND
Appellant contacted an EEO counselor on September 18, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when:
(1) he was not selected for the position of Compliance Officer (Division
Director) GS-1801-15, under Vacancy Announcement No. FSIS 97-41;
(2) he did not receive an outstanding performance evaluation during the
fiscal years 1992, 1993, 1994, and 1996;
(3) he was not given the special assignment of Deputy Director Field
Operations in 1996;
(4) he was not detailed to the Administrator's Office in 1996;
(5) he was not assigned as Program Manager for administrative cases;
(6) he was not given an opportunity to participate in the Top to Bottom
and Transition Team task forces;
(7) he was not assigned to teach the Compliance Officers course at Sam
Houston University; and
(8) he received only one award since 1987, except a recent award for
work not performed at headquarters.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on December 3, 1997, appellant filed a formal complaint
alleging that he was the victim of unlawful employment discrimination
on the bases of age (3/20/47), race (white), and sex (male).
On February 27, 1998, the agency issued a final decision (FAD)
accepting for investigation allegation (1) of appellant's complaint
but dismissing the remaining allegations as untimely. Specifically,
the agency determined that appellant's September 18, 1997 EEO contact
concerning allegations (2) through (8) was well beyond the time period
for counselor contact established by 29 C.F.R. �1614.105(a)(1).
On appeal, appellant asserts that the agency's has engaged in a pattern
and practice of discriminatory conduct against him with regard to
non-selections, special assignments, and other opportunities for career
advancement.
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 EEO 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 time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of
discrimination have become apparent.
One such circumstance under which the time limitation may be waived is if
the otherwise untimely allegation is part of a "continuing violation,"
i.e., a series of discriminatory acts, at least one of which occurred
during the 45 days prior to the initial counselor contact. In order to
present a continuing violation, appellant must show a "series of related
acts, one or more of which falls within the limitations period." United
Airlines, Inc., v. Evans, 431 U.S. 553, 558 (1977); Valentino v. United
States Postal Service, 674 F.2d 56 (D.C. Cir. 1982). Appellant must
also establish that the various acts complained of are sufficiently
interrelated by a common nexus so as to constitute a continuing violation.
See Milton v. Weinberger, 645 F.2d 1070 (D.C. Cir. 1981).
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 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. See Scott v. Claytor,
469 F.Supp. 22, 26 (D.D.C. 1978).
In determining whether a continuing violation exists, the Commission
has relied on the decision in Berry, wherein the court set forth
three relevant factors: whether the alleged acts involve the same
type of discrimination; whether the alleged acts are recurring (e.g.,
a biweekly paycheck) or more in the nature of an isolated work assignment
or employment decision; and whether the act has the degree of permanence
which should trigger an employee's awareness of and duty to assert
his or her rights, in other words, whether the act should indicate to
the employee that the continued existence of the adverse consequences
of the act is to be expected without being dependent on a continuing
intent to discriminate. Berry, 715 F.2d at 981. Incidents that are
sufficiently distinct to trigger the running of the limitations period do
not constitute continuing violations. See e.g., Miller v. Shawmut Bank,
726 F.Supp. 337, 341 (D. Mass. 1989); Cogen v. Milton Bradley Co./Hasbro
Inc., 449 Empl. Prac. Dec. (CCH) �38, 894 (D. Mass. 1989). In Cogen,
the court rejected the plaintiff's attempt to apply the continuing
violation theory to, among other allegations an assignment issue.
The court stated that "discrete acts of discrimination taking place
at identifiable points in time" are not continuing violations for the
purpose of extending the limitations period. Id. at 58, 757; see also
Edinboro v. Department of Health and Human Services, 704 F.Supp. 364,
367 (S.D.N.Y. 1988)(demotion not a continuing violation).
In this case, the Commission finds that the denial of special assignments
and awards, the less than outstanding performance evaluations and the
denial of other career-enhancing opportunities, which occurred between
1987 and 1996, were separate and distinct events from the non-selection
allegation, and had the degree of permanence which should have triggered
appellant's awareness to assert his rights. The events, therefore, do not
constitute a continuing violation. We find that appellant's contention
that the agency engaged in a pattern and practice of discrimination,
is insufficient to justify an extension of the applicable time limit
well beyond the statutory guidelines. See Baldwin County Welcome
Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who fails
to act diligently cannot invoke equitable principles to excuse lack of
diligence"); Rys v. U.S. Postal Service, 886 F.2d 443, 446 (1st Cir. 1989)
("to find succor in equity a Title VII plaintiff must have diligently
pursued her claim").
CONCLUSION
Accordingly, the agency's decision dismissing part of appellant's
complaint as untimely is hereby AFFIRMED for the reasons set forth
herein.
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:
March 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations