APPELLANT,
v.
DICK CHENEY, SECRETARY, DEPARTMENT OF DEFENSE (DEFENSE LOGISTICS AGENCY), AGENCY.

Request No. 05920506
Appeal No. 01920563
Agency No. AA-90-001

August 25, 1992

DENIAL OF REQUEST TO REOPEN

INTRODUCTION

On March 23, 1992, the Department of Defense (Defense Logistics Agency) (hereinafter referred to as the agency) initiated a timely request to the Equal Employment Opportunity Commission (EEOC or Commission) to reopen and reconsider the decision in Appellant v. Dick Cheney, Secretary, Department of Defense (Defense Logistics Agency), EEOC Appeal No. 01920563 (February 24, 1992). EEOC regulations provide that the Commission may, in its discretion, reopen and reconsider any previous decision. 29 C.F.R. 1613.235(a). The party requesting reopening must submit written argument or evidence that tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b). The agency bases its request on 29 C.F.R. 1613.235(b)(2) (the previous decision involved an erroneous interpretation of law or regulation, or a misapplication of established policy). For the reasons set forth herein, the agency's request is denied.

ISSUE PRESENTED

The issues presented are whether the previous decision properly accepted appellant's appeal as timely filed and properly vacated and remanded the agency's decision rejecting portions of appellant's complaint for untimely EEO contact.

BACKGROUND

Appellant filed a formal complaint of discrimination on March 5, 1990, in which he charged that the Director of the Office of Policy, Plans and Resource Management (DSAC-L) had discriminated against him on the bases of his race, sex, and age in denying him promotional opportunities from his GS-12 management analyst position to GM/GS-13 positions. In support of his complaint, he described a series of actions dating from April 1987 wherein the Director made management decisions concerning the GM/GS-13 positions in DSAC-L that appellant believed thwarted his opportunities for promotion. The most recent event occurred in November 1989 when a GM-13 employee outside of DSAC-L was transferred to a vacant GM-13 position.

In a letter dated June 14, 1990, the agency accepted appellant's complaint of race and age discrimination in regard to "not being accepted for (a) Supervisory Management Analyst GM-343-13 position." The record indicates this was the November 1989 transfer. Upon his inquiry, appellant was advised in a June 19, 1990 agency letter that sex discrimination was not an issue in his complaint because the selectee in the accepted incident was male and the other events of alleged discrimination involving women were untimely. This agency letter did not include appeal rights with regard to the finding of untimeliness.

The agency subsequently conducted an investigation and on October 3, 1991 issued a proposed disposition (PD) of no discrimination with regard to the November 1989 transfer. The PD also stated that all incidents of alleged discrimination other than the transfer, including the two promotions of women in 1987 and 1988, [FN1] were untimely. [FN2] It stated that this finding of untimeliness was a final decision and gave appellant appeal rights to this Com-mission. Appellant received the agency's October 3, 1991 letter on October 8, 1991.

On October 16, 1991, appellant requested a hearing on this complaint and another complaint in which he had challenged a December 1989 nonselection. On November 13, 1991, appellant filed an appeal with this Commission in which he stated that he was confused by the agency's October 3, 1991 letter, that he had thought his hearing request would encompass the timeliness question but that he had been informed by an attorney that he had to appeal this matter to EEOC. Appellant therefore requested an extension of the 20-day deadline for filing an appeal. He also asserted that the rejected allegations constituted a continuing violation.

The agency opposed appellant's request for an extension of the time limit, arguing that its October 3, 1991, letter was not unclear as to the appeal deadline. It also argued that the rejected allegations did not state a claim for a continuing violation because appellant had not demonstrated their interrelatedness.

The previous decision accepted appellant's appeal as timely, finding that the agency had failed to submit a certified mail return receipt establishing the date that appellant received the final decision. In a footnote, it also stated that the agency confused the appellant by issuing a final decision as to some issues in the same document as the PD. With regard to the timeliness of the rejected allegations, the previous decision found that the agency should have conducted an inquiry sufficient to establish whether a common nexus existed between the rejected allegation and the transfer allegation. [FN3] It therefore remanded the allegations for this inquiry and issuance of a new final agency decision accepting or rejecting the allegations pursuant to the continuing violation theory.

On request to reopen, the agency has filed a request to reopen the previous decision asserting that the certified mail receipt establishing October 8, 1991 as the date of appellant's receipt of the final agency decision was in fact included in the appellate record and that the appeal was therefore untimely. The agency also reiterates its argument that the rejected portions of appellant's complaint were untimely because he did not show that they were so interrelated as to state a claim for a continuing violation. In addition, it asserts that the investigation it has already conducted was sufficient to show that the rejected allegations do not constitute a continuing violation. Appellant has not responded to the agency's request to reopen.

ANALYSIS AND FINDINGS

After a careful review of the record, the Commission finds that the agency's request to reopen fails to meet any of the criteria of 29 C.F.R. 1613.235(b). It is therefore the decision of the Commission to deny the request.

With regard to the timeliness of appellant's appeal, the Commission finds that the agency is correct that the prior, appellate decision overlooked the certified mail return receipt establishing appellant's receipt of the final agency decision on October 8, 1991. Nevertheless, we find that the appellate decision reached the correct result in finding the appeal timely, and we agree with its conclusion that the agency's combination PD/FAD was a very confusing document. Under these circumstances, where the agency's conduct significantly contributed to appellant's failure to file an appeal within 20 days, it would be inequitable to deny the appeal as untimely.

The second issue before the Commission is the propriety of the prior decision to vacate the agency's rejection of a portion of appellant's complaint for untimely EEO contact. We find that the prior decision correctly vacated the agency's decision and remanded the allegations for consideration under the continuing violation theory. To state a claim for a continuing violation, a complainant must show a series of related acts, one or more of which falls within the charge-filing period. United Airlines v. Evans, 431 U.S. 553, 558 (1977); Valentino v. USPS, 674 F.2d 56 (D.C. Cir. 1982). The key to a viable continuing violation complaint is the interrelatedness of the acts that are alleged to be discriminatory, e.g., whether the same of type of action and the same official(s) were involved. Scott v. Claytor, 469 F. Supp. 22 (D.D.C. 1978). In addition, an agency should consider whether a complainant had prior knowledge or suspicion of discrimination and the effect of this knowledge. See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990).

It was necessary, therefore, for the agency to gather adequate information to show whether appellant's rejected allegations were sufficiently related to the timely raised issue of the transfer to state a claim for a continuing violation, before the agency rejected the allegations as untimely. An agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. While the agency herein contends that it had sufficient information to make such a determination, its October 3, 1991 decision 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.

We also find, however, that the prior, appellate decision must be modified in one respect. The record indicates that in June 1990 the agency rejected sex as a basis of appellant's complaint, due to its determination that appellant's allegations related to promotion of women, were untimely. Appellant was not at this time provided with appeal rights. Furthermore, sex as an alleged basis of appellant's complaint was not addressed in the October 3, 1991 letter that again rejected some allegations as untimely, with appeal rights. Appellant alleged in his formal complaint that he was discriminatorily nonpromoted in favor of women in at least two specific instances. Accordingly, he stated a claim of sex discrimination, and it was improper for the agency to reject sex as a basis of his complaint. Furthermore, the allegations rejected as untimely are being remanded for consideration as a continuing violation. Therefore, on remand, the agency is directed to add sex as a basis of appellant's complaint.

CONCLUSION

After a review of the agency's request to reopen, the previous decision, and the entire record, the Commission finds that the agency's request fails to meet any of the criteria of 29 C.F.R. 1613.235(b). It is therefore the decision of the Commission to deny the agency's request. The decision in EEOC Appeal No. 01920563 (February 24, 1992), as MODIFIED herein, remains the Commission's final decision. There is no further right of administrative appeal on a decision of the Commission on a Request to Reopen.

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 thirty (30) 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 (K0391)

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.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST TO REOPEN

RIGHT TO FILE A CIVIL ACTION (R0391)

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: (1) within thirty (30) calendar days of receipt of notice of final action taken by the agency on your complaint subsequent to this remand; or (2) after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or your appeal with the Commission, until such time as the agency issues its final decision on your complaint. See Section 717(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.; 29 C.F.R. 1613.281. You may be required to exhaust the administrative process prior to filing a civil action, depending upon the jurisdiction in which you file. Furthermore, the limitations period for filing a civil action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq. (ADEA) may differ from the period set out for the filing of civil actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 791. You may be foreclosed from filing a civil action on any claim brought under the ADEA if you fail to file within the limitations period applied by the Court in the jurisdiction in which your action is 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. "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 (Z0391)

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 THIRTY (30) CALENDAR DAYS of the date you receive the Commission's decision.

For the Commission:

Frances M. Hart
Executive Officer
Executive Secretariat

FN1. The prior, appellate decision details appellant's five allegations of discrimination, including the 1987 and 1988 promotions.

FN2. The agency stated that these events occurred long before appellant's initial contact with the EEO office in December 1989. We note that the EEO counselor's report gave the date of EEO contact and appellant's initial interview as January 24, 1990.

FN3. The appellate decision indicated that the agency's October 3, 1991 letter had merely accepted the transfer allegation. However, we note, as discussed above, that this issue had been investigated and that the October 3 document was a proposed disposition of no discrimination as to the transfer.