01974460
11-20-1998
Frances Perez, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Frances Perez v. Department of the Treasury
01974460
November 20, 1998
Frances Perez, )
Appellant, )
)
v. ) Appeal No. 01974460
) Agency No. 97-3097
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulations 29
C.F.R. �1614.107(b) and (e), for untimeliness and mootness. Appellant
alleged that she was subjected to discrimination on the basis of reprisal,
when:
On August 17, 1995, her former manager orally placed her on leave
restriction;
On June 28, 1996, her former manager met with her to discuss a
work-related matter and mentioned placing her on leave restriction; and
On July 12, 1996, her former manager issued her a leave restriction
letter.
Appellant argued that the time limit should be extended for the
untimely allegations because she was subjected to a continuing violation.
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). Whether a series of discrete acts constitutes a
continuing violation claim depends on the interrelatedness of the past
and present acts. Relevant to this determination are whether the
discrete acts were similar in nature; whether the acts were recurring
(e.g., a regular paycheck) or were more in the nature of isolated
employment decisions; whether an untimely discrete act had the degree of
permanence which should have triggered an employee's awareness and duty to
assert his or her rights; whether the same agency officials were involved;
and so forth. Woljan v. Environmental Protection Agency, EEOC Request No.
05950361 (October 5, 1995). Also relevant to the inquiry is whether the
complainant had prior knowledge or suspicion of the discrimination.
Rohrer v. Department of Health and Human Services, EEOC Request No.
05940965 (April 12, 1995); Crowbridge v. United States Postal Service,
EEOC Request No. 05921030 (October 14, 1994).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with a Counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of
personnel action, within 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 45-day
limitation period is triggered. Turner v. Department of the Navy, EEOC
Request No. 01973691 (January 29, 1998). Thus, the limitation period is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
In the present case, the agency found that appellant failed to initiate
contact with an EEO Counselor in a timely manner. The Commission agrees
with the agency in that appellant should have reasonably suspected
discrimination in June 1996, when her former manager mentioned
placing her on leave restriction. In addition, because none of the
allegations occurred within the 45-day limitation period, appellant's
complaint cannot be found timely as a continuing violation. Appellant
initiated contact with an EEO Counselor in December 1996, while the last
reported discriminatory incident occurred in July 1996. Accordingly,
the agency's final decision dismissing appellant's complaint as untimely
was proper.<1>
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:
Nov 20, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The agency also properly dismissed appellant's complaint as moot.
Because appellant reports to a new manager and the leave restriction
letter was never enforced nor placed in appellant's performance files, the
Commission finds that the effects of the alleged violation were completely
and irrevocably eradicated, and that there is no reasonable expectation
that the alleged violation will recur. See Flores v. Department of the
Army, EEOC Request No. 01831886 (December 28, 1983).