The Commission has held that the time requirements for initiating EEO
counseling can be waived as to certain allegations within a complaint when
the complainant alleges a continuing violation. A continuing violation
has been defined as a series of related discriminatory acts, one of
which falls within the time period for contacting an EEO counselor.
McGivern v. United States Postal Service, EEOC Request No. 05901150
(December 28, 1990). The courts have established three factors to
determine if the acts constitute a continuing violation:
(1) whether the same type of discrimination is present in all of the allegations;
(2) whether the alleged violations are recurring;
(3) whether the discriminatory acts involved were of such permanence or finality to
trigger the employee’s duty to assert his or her rights.
See 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.
Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308 (June 13, 1989).
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. Clayton, 469 F. Supp. 22, 26 (D.D.C. 1978).
Finally, we note that courts have held that in determining whether a claim
for continuing violation is stated, it is important to consider whether
appellant had prior knowledge or suspicion of discrimination. See Sabree
v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d
396 (1st Cir. 1990). Moreover, it is necessary to distinguish between
a complainant who believed he had been subject to discrimination, and
therefore had the obligation to file promptly or lose his claim, versus
a complainant who 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. Hagan v. Department of
Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993).
