01982250
05-17-1999
Brian G. Polanco, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Brian G. Polanco v. Department of the Air Force
01982250
May 17, 1999
Brian G. Polanco, )
Appellant, )
)
v. ) Appeal No. 01982250
) Agency No. LU1M98008
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
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. Appellant's attorney received the final agency
decision on December 29, 1997. The appeal was postmarked January 22,
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.
ISSUES PRESENTED
The issues presented on appeal are as follows:
whether the agency properly dismissed allegations 1-2 of appellant's
complaint on the grounds that they state the same claims as that pending
before or that has been decided by the agency;
whether the agency properly dismissed allegations 3-4 of appellant's
complaint on the grounds that they constituted preliminary steps to
taking a personnel action;
whether the agency properly dismissed allegations 5-6 of appellant's
complaint on the grounds that they state the same claim as that pending
before or that has been decided by the agency and mootness;
whether the agency properly dismissed allegations 7-8 of appellant's
complaint on the grounds of failure to state a claim; and
whether the agency properly dismissed allegation 9 of appellant's
complaint on the grounds that appellant failed to contact an EEO Counselor
in a timely manner.
BACKGROUND
The record reveals that appellant initiated contact with an EEO Counselor
on October 31, 1997. On December 4, 1997, appellant filed a formal
EEO complaint wherein he alleged that he had been discriminated against
on the bases of his sex (male), race (Hispanic/non-African-American),
and in reprisal for his previous EEO activity when:
1. On September 25, 1995, he was moved from the position of GS-132-11,
Intelligence Analysts, Directorate of Intelligence, to GS-1071-11,
Motion Picture Production Specialist, 61st Communication Squadron.
2. On September 25, 1995, his access to Sensitive Compartmental
Information was rescinded.
3. On November 8, 1995, he received a proposed suspension for five days.
4. In June/July 1997, his position as Video Information Specialist,
GS-1071-11, was identified for review under Circular A-76 provisions.
5. In 1995, his rating of "Superior" was rescinded.
6. In 1995, his "time off" award was rescinded.
7. On October 7, 1997, the Assistant Inspector General gave him a dirty
look.
8. Agency management prevented him from applying for positions.
9. In November 1995, the Los Angeles Air Force Base refused to process
his complaint.
10. On October 7, 1997, he received a Letter of Reprimand.
As relief, appellant requested in part that he receive compensatory
damages for harm to his career and reputation.
In its final decision, the agency dismissed allegations 1-2 of appellant's
complaint on the grounds that they state the same claims that are pending
before or that have been decided by the agency. The agency determined
that these issues were previously raised in appellant's complaint,
Agency No. LU1M97083, and dismissed as untimely on October 21, 1997.
The agency dismissed allegations 3-4 on the grounds that they concern
matters that represent a preliminary step to taking a personnel action.
Allegations 5-6 were dismissed on the grounds that they state the same
claim that has been decided by the agency, and mootness. According to
the agency, these allegations were raised in Agency No. LU1M97083 and
dismissed on October 21, 1997. The agency further determined that the
allegations are moot as a result of appellant having raised the matters
in a grievance that was settled on June 10, 1996. Allegations 7-8
were dismissed on the grounds of failure to state a claim. The agency
concluded that the allegations did not refer to a term, condition,
or privilege of appellant's employment. The agency noted that in
allegation 8, appellant did not specify the relevant positions or dates
of the alleged discrimination. Allegation 9 was dismissed on the grounds
that appellant failed to contact an EEO Counselor in a timely manner.
Allegation 10 was accepted for investigation.
On appeal, appellant contends that he has been subjected to a series
of ongoing discriminatory and retaliatory actions that constitute a
continuing violation. Appellant also claims that the 45-day limitation
period should be equitably tolled due to the agency's consistent
unwillingness to entertain his attempts to seek EEO counseling
and/or file a formal EEO complaint. Appellant cites the reluctance
of Los Angeles Air Force Base EEO officials to accept his complaint
of discrimination. Appellant states that he did not realize that
he was being discriminated against until he received the Letter of
Reprimand. According to appellant, the common nexus among the cited
incidents is their relationship to the agency's EPIC investigation
of the discrimination complaints of three female, African-American
employees. Appellant argues that the investigation prompted the agency
to take a series of adverse actions against him and several other male,
non-African-American employees, including the issuance of the Letter of
Intent to Suspend. With regard to allegations 3-4, appellant argues that
the relevant incidents were effectuated for the purpose of harassing him,
and therefore, the personnel actions should be considered completed.
Appellant further argues that the letter of proposed suspension was
no longer a preliminary action when the agency issued him a letter of
reprimand almost two years later. As for allegations 5-6, appellant
maintains that a continuing violation is not reflected in his grievance
in light of the fact that he did not realize until recently that the
agency has engaged in a continuing violation. Appellant states that
at the time he filed his grievance, he considered the rescission of
his "Superior" rating and "time-off" award to be isolated incidents.
Further, appellant argues that the settlement of his grievance contains
no language limiting his right to challenge the rescissions through the
filing of a subsequent EEO complaint. With regard to allegations 7-8,
appellant claims that the continuing violation has subjected him to a
direct personal deprivation.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident and parties.
See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
The agency dismissed allegations 1-2 of the instant complaint under this
provision on the grounds that these allegations stated the same claim as
that in Agency No. LU1M97083. The previous complaint filed by appellant
concerned in part appellant being moved from his position of Intelligence
Analyst to a Motion Picture Production Specialist position on September
25, 1995, and when his access to Sensitive Compartmental Information was
rescinded on September 25, 1995. The agency dismissed these allegations
from the previous complaint in its final decision dated October 21, 1997.
Accordingly, the agency's decision to dismiss allegations 1-2 of the
instant complaint was proper and is AFFIRMED.
Furthermore, upon review, we find that allegations 5-6 also state the
same claims as raised in Agency No. LU1M97083. The previous complaint
alleged, inter alia, that appellant was subjected to discrimination
when in 1995, his rating of "Superior" was rescinded and his performance
award was rescinded, the same issues as raised in allegations 5-6 in the
present case. Therefore, we find that dismissal of allegations 5-6 was
proper pursuant to 29 C.F.R. �1614.107(a).<1>
EEOC Regulation 29 C.F.R. �1614.107(e) requires an agency to dismiss a
complaint or a portion of a complaint that alleges that a proposal to
take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory. The Commission has held that proposed
actions do not create a direct and personal deprivation which would
make the appellant an "aggrieved" employee within the meaning of EEOC
Regulations. See Charles v. Department of the Treasury, EEOC Request
No. 05910190 (February 25, 1991); Lewis v. Department of the Interior,
EEOC Request 05900095 (February 6, 1990). If however, the complainant
alleges that the preliminary step was taken for the purpose of harassing
the complainant for a prohibited reason, the agency may not dismiss the
allegation as preliminary because, allegedly, the matter already has
adversely affected the complainant. See Section-by-Section Analysis,
57 Fed. Reg. 12643 (1992); Henry v. United States Postal Service, EEOC
Request No. 05950229 (November 22, 1995); EEOC Management Directive 110
(MD-110) (October 22, 1992), at 4-7, note 2.
Upon review, we find that the agency's dismissal of the allegations
concerning appellant's proposed suspension and his position being
identified for review was improper. Appellant has alleged that those
incidents were part of a pattern of harassment. Accordingly, the agency's
decision to dismiss allegations 3-4 was improper and is REVERSED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. The Commission's Federal sector case
precedent has long defined an "aggrieved employee" as one who suffers 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 (Apr. 21, 1994).
We find that the agency properly dismissed allegations 7-8. In allegation
7, appellant alleged that the Assistant Inspector General gave him a dirty
look on one occasion. Similar to a remark or comment, we find that one
purported bad look does not raise to the level of a compensable injury
within the purview of the regulations. Henry v. USPS, EEOC Request
No. 05940695 (February 9, 1995)(a remark or comment unaccompanied by
concrete action is not a direct and personal deprivation sufficient
to render an individual aggrieved for the purposes of Title VII).
With regard to allegation 8, we note that appellant did not identify
any positions for which he was prevented from applying. Absent the
more specific information, we find that allegation 8 fails to raise a
specific injury and, hence, also fails to state a processable claim.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity 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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
Appellant alleged that in November 1995, the Los Angeles Air Force Base
refused to process his complaint. Appellant did not initiate contact
with an EEO Counselor until October 31, 1997. This contact was after
the expiration of the 45-day limitation period. We note that in his
affidavit in support of his appeal, appellant stated that at the time
of the alleged discrimination, he was sure that EEO complaints filed by
three African-American female employees had been accepted and processed
at the Los Angeles Air Force Base. It is clear that appellant suspected
discrimination in November 1995. We find that appellant has not provided
adequate justification for his failure to contact an EEO Counselor in a
timely manner. Accordingly, the agency's decision to dismiss allegation
9 as untimely was proper and is AFFIRMED.
CONCLUSION
The agency's dismissal of allegations 1-2 and 5-9 is hereby AFFIRMED.
The agency's dismissal of allegations 3-4 is hereby REVERSED. These
allegations are hereby REMANDED for further processing pursuant to the
Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations (allegations
3-4) in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge
to the appellant that it has received the remanded allegations
(allegations 3-4) within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to appellant a copy of
the investigative file and also shall notify appellant of the appropriate
rights within one hundred fifty (150) calendar days of the date this
decision becomes final, unless the matter is otherwise resolved prior to
that time. If the appellant requests a final decision without a hearing,
the agency shall issue a final decision within sixty (60) days of receipt
of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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. If you file a request to reconsider and also file a
civil action, 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:
May 17, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Since we are affirming the agency's dismissal of allegations 5-6 for the
reasons set forth above, we will not address the agency's alternative
grounds for dismissal.