Appellant, V. Hazel R. O'Leary, Secretary, Department of Energy, Agency.

Appellant,

V.

Hazel R. O'Leary, Secretary, Department of Energy, Agency.

Request No. 05930703

Appeal No. 01931565

Agency No. 93(21)IR-DP

January 04, 1994

GRANT OF REQUEST TO RECONSIDER

INTRODUCTION

On May 3, 1993, Appellant, (hereinafter referred to as appellant), initiated a timely request to the Equal Employment Opportunity Commission (EEOC) to reconsider the decision in Appellant v. Hazel R. O'Leary, Secretary, Department of Energy, EEOC Appeal No. 01931565 (April 7, 1993). EEOC Regulations provide that the Commissioners may, in their discretion, reconsider any previous Commission decision. 29 C.F.R. �1614.407(a). The party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following three criteria: 29 C.F.R. �1614.407(c)(1) (new and material evidence is available that was not readily available when the previous decision was issued); 29 C.F.R. �1614.407(c)(2) (the previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy); and 29 C.F.R. �1614.407(c)(3) (the decision is of such exceptional nature as to have substantial precedential implications). Appellant bases his request on all three criteria. For the reasons set forth herein, appellant's request is granted.

ISSUE PRESENTED

The issue presented herein is whether appellant's request satisfies any of the criteria for reconsideration of the previous decision which affirmed the agency's final decision rejecting 13 of 14 allegations for failure to seek EEO counseling in a timely manner.

BACKGROUND

The record shows in relevant part that appellant filed a formal EEO complaint on November 5, 1992, wherein he alleged discrimination on the basis of reprisal (prior EEO activity) when the agency failed to promote him on 14 occasions from May 1989 through April 1992.

The final agency decision (FAD) rejected all of appellant's allegations except for one: his nonpromotion to the position of GS-13 Physical Security Specialist, Vacancy Announcement No. SR-92-062. [FN1] The stated reason for the rejections was appellant's alleged failure to seek EEO Counseling in a timely manner. [FN2] The agency did not indicate why it accepted allegation (14) as timely, while rejecting allegations (1)-(13) as untimely. We note that al-legation (14) involved a position appellant alleged he had applied for on April 28, 1992. In his formal complaint, appellant alleged an agency official informed him on June 2, 1992 that she was 'leaning toward finding [appellant]' unqualified. Appellant further alleged that on September 16, 1992, subsequent to a conversation with another agency official, appellant reviewed records of his agency vacancy applications back to 1989, wherein he realized the agency had been discriminating against him. Since appellant cited September 16, 1992 in his complaint as the date of the latest alleged agency act of discrimination against him, we infer that the agency accepted allegation (14) as timely for that reason.

On appeal, the previous decision affirmed the FAD. The previous decision found that the agency had correctly treated appellant's complaint as alleging 14 separate incidents of discrimination. The previous decision also found that 13 of appellant's allegations were untimely. In addition, the previous decision construed as an allegation of a continuing violation appellant's contention that the agency had continuously acted to impede his career advancement. The previous decision found, however, that rejected allegations (1)-(13) did not constitute a continuing violation because appellant had not shown that similar positions requiring similar qualifications were involved. Therefore, the previous decision concluded that appellant had not established a relationship between allegation (14), his timely nonselection claim, and the prior 13 untimely allegations.

The gravamen of appellant's request for reconsideration is that the agency has historically subjected him to reprisal on a continuing basis. Appellant cites in this regard his November 1987 removal from Federal Service and apparent reinstatement by the Merit Systems Protection Board (MSPB), acting on his 'mixed case' complaint. [FN3] Appellant also references a June 30, 1989 'settlement agreement,' presumably related to his use of the EEO process, for which agency officials have retaliated against him by frustrating appellant's attempts to advance his career. Appellant also argues, without providing specific evidence, that agency and EEOC officials 'misled' him with regard to prior com-plaints. He further argues that a proper investigation would establish an interrelationship between his nonpromotions and agency officials involved in them.

There was no response by the agency to appellant's request.

ANALYSIS AND FINDINGS

After a careful review of the record, the Commission finds that appellant's request to reconsider satisfies 29 C.F.R. �1614.407(a)(2). It is, therefore, the decision of the Commission to grant the request.

As a threshold matter, we find that where, as here, there is an issue of timeliness, '[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.' Homer Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Moreover, where, as here, a complainant alleges a pattern and practice of discrimination against him, an agency is obligated to initiate an inquiry into whether any allegations untimely raised fall within the ambit of the continuing violation theory. Id.

The Commission has determined that the normal time limit for contacting an EEO Counselor may be suspended if a continuing violation is demonstrated. Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308 (June 13, 1989). A continuing violation has been defined as a series of related acts, one or more of which falls within the limitations period. Valentino v. U.S. Postal Service, 674 F.2d 56 (D.C. Cir. 1982); Clark v. Olincraft, Inc., 556 F.2d 1219 (5th Cir. 1977), cert. denied, 434 U.S. 1069 (1978). To establish a continuing violation, one must show a 'long-lasting pattern of like events' similar to a policy of discrimination (albeit directed against a single individual). Shehadeh v. Chesapeake and Potomac Telephone Co. of Maryland, 595 F.2d 711, 725 (D.C. Cir. 1978) (defendant repeatedly provided negative references on former employee).

It is also important, in determining whether a claim for a continuing violation is stated, to consider whether appellant had any prior knowledge or suspicion of discrimination and the effect of this knowledge. Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who believed he had been subjected to discrimination had an obligation to file promptly with the EEOC or lose his claim, as distinguished from the situation where a plaintiff is unable to appreciate that he is being discriminated against until he has lived through a series of acts and is thereby able to perceive the overall discriminatory pattern). The key to a viable continuing violation complaint is the interrelatedness of the acts that are alleged to be discriminatory. Scott v. Claytor, 469 F. Supp. 22, 25 (D.D.C. 1978). The necessary interrelatedness may be established in a failure to promote case by showing, e.g., that the positions sought were the same or substantially similar and that the same officials were involved in the selections. Scott v. Claytor, supra, 469 F. Supp. at 26.

We find in the instant matter, adopting our language in Williams, supra, that the FAD 'does not discuss any relevant facts or even allude to consideration of the question of a continuing violation. Therefore, the case must be remanded for consideration of this question and issuance of a new final agency decision making a specific determination under the continuing violation theory.

Accordingly, we find that the previous decision erred when it affirmed the agency's rejection of allegations (1)-(13) for untimely EEO Counselor contact without requiring the agency to conduct a continuing violation inquiry and determination. Although we note that the previous decision did its own continuing violation analysis, we find that the previous decision did so on the basis of an inadequate record when it determined that appellant's allegations involved different positions with different requirements. While we note that the job titles at issue varied, we find that, without more, the previous decision's determination was conclusory. It may well be, for example, that the same selecting official was involved in appellant's nonpromotions or that the positions were in the same office.

For the aforementioned reasons, we find that appellant's request satisfies 29 C.F.R. �1614.407(c)(2). Appellant's request is, therefore, granted. The previous decision is hereby VACATED, along with the final agency decision's rejection of allegations (1)-(13), and appellant's complaint is REMANDED to the agency for compliance with the Commission's ORDER set forth below.

CONCLUSION

After a review of appellant's request to reconsider, the previous decision, and the entire record, the Commission finds that appellant's request satisfies 29 C.F.R. �1614.407(c)(2). It is, therefore, the decision of the Commission to grant the request. The decision of the Commission in EEOC Appeal No. 01931565 (April 7, 1993), affirming the final agency decision's rejection of allegations (1)-(13) for untimely EEO contact is VACATED and appellant's complaint is REMANDED to the agency for compliance with the Commission's ORDER set forth below. This decision is the Commission's final decision in this matter. There is no further right of administrative appeal from the decision of the Commission on this request to reconsider.

ORDER

The agency is ORDERED to conduct an inquiry sufficient to enable it to make a reasoned decision as to whether to accept any or all of appellant's previously rejected allegations pursuant to the continuing violation theory. The agency shall conduct such inquiry and issue a final agency decision accepting or rejecting the allegations within sixty (60) calendar days of the date this decision is received. A copy of the final agency decision must be sent to the Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1092)

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.

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:

Frances M. Hart

Executive Officer

Executive Secretariat

[FN1]. Appellant was a GS-12 Personnel Security Specialist at the time he filed his EEO complaint.

[FN2]. According to the EEO Counselor's report, appellant initiated EEO contact on October 1, 1992, the effective date of the Commission's new Regulations under 29 C.F.R. Part 1614. These Regulations superseded Part 1613, and, inter alia, extended to 45 days from 30 days the time limitation for an aggrieved person to contact an EEO Counselor once he/she knew or reasonably should have known of employment discrimination.

[FN3]. 'A mixed case complaint is a complaint of employment discrimination ... related to or stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB)....' EEOC Regulation 29 C.F.R. �1614.302(a).