01981376
03-02-1999
Fred Murillo, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Fred Murillo v. Department of Justice
01981376
March 2, 1999
Fred Murillo, )
Appellant, )
)
v. ) Appeal No. 01981376
) Agency No. P-94-8407
Janet Reno, )
Attorney General, )
Department of Justice, )
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., and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq. The final agency decision
was issued on May 31, 1996. The appeal was postmarked November 22, 1997.
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.<1>
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
portions of appellant's complaint on the grounds that appellant failed
to contact an EEO Counselor in a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on January 5, 1994.
In a formal EEO complaint dated February 11, 1994, appellant alleged that
he had been discriminated against on the bases of his race (Hispanic)
and age (47) when:
1. He was reassigned from his position as a Correctional Supervisor
at the Federal Correctional Institution, Florence, Colorado as a Chief
Correctional Supervisor, GM-13 to a Unit Manager, GS-12 at the Federal
Correctional Institution, Pekin, Illinois.
2. He did not receive recognition or awards for his contributions at
the Federal Correctional Institution in Florence, Colorado.
3. His annual performance evaluation was late and not in accordance with
his performance log entries.
4. He received a performance plan letter on September 29, 1993.
Appellant also provided a written statement that contained a list of 17
questions and general inquiries addressed to his superior, the Warden,
concerning his performance evaluation and his reassignment.
The agency accepted allegations 1-2 for investigation. Allegations 3-4
were dismissed on the grounds that appellant failed to contact an EEO
Counselor in a timely manner. The agency informed appellant that if
he wished to pursue these issues, he must advise the agency within 15
days of his receipt of the letter and provide any information that would
support that these issues are timely. In addition, the agency stated
that if appellant believed the issues were not correctly identified,
he should respond within 15 days specifying why he believed the issues
were not correct.
By letter dated May 18, 1994, appellant notified the agency that it had
disregarded certain incidents that he considered significant in evaluating
the Warden's behavior and the work environment at the Florence facility.
The agency responded that questions 1-5 raised by appellant concerned
his performance appraisal and the September 29, 1993 performance plan
letter. The agency stated that these issues were not raised in a timely
manner but that appellant had 15 days to provided any information that
would show these issues are timely. Further, the agency stated that
questions 6-9, 11 and 15-16 could be considered as part of the accepted
issue concerning appellant's transfer. The agency also determined that
question 17 could be considered as part of allegation 2. The agency
requested that appellant provide additional information to clarify
questions 10 and 14.
In Fred Murillo v. Department of Justice, EEOC Appeal No. 01943876 (July
21, 1995), we reversed the agency's decision to dismiss a portion of the
instant complaint. We found that the agency had not properly defined
the complaint. We issued an order requiring that appellant and an
EEO Counselor meet so that an agreement could be reached on the issues
in the complaint. Thereafter, the EEO Counselor was directed to issue
a new EEO Counselor's report concerning the meeting and defining the
remanded allegations. The agency was also instructed that in the event
it dismissed any allegations on the grounds of untimely EEO Counselor
contact, it must consider whether such allegations are timely under the
continuing violation theory.
On May 31, 1996, the agency defined the following issues as being part
of the instant complaint:
1. Appellant did not receive his 1993 yearly evaluation in a timely
manner.
2. Appellant's evaluation was not prepared according to agency
regulations.
3. Appellant's significant incident logs were not used to prepare his
yearly evaluation, and were changed improperly.
4. Significant incident logs for the last quarter of 1993 were done by
the rater, but were later changed by the Warden for no valid reason.
5. Appellant did not receive his yearly GM bonus.
6. Appellant was transferred to the Federal Correctional Institution in
Greenville.
7. Appellant was issued a performance improvement plan letter by the
Associate Warden, as directed by the Warden, for not locking up some
inmates and failing to notify the Regional Office.
8. Appellant was never given the opportunity to follow up on the
performance improvement plan letter.
9. Appellant was blamed for the Satterwhite situation.
10. The Warden used obscene and insulting language about appellant in
a discussion with the Disciplinary Hearing Officer.
11. The following comments were made to appellant by the Correctional
Services Administrator, North Central Region: You were tired. How many
years did you have left? You were not going to get a promotion and if
he did not find you a job as a GM-13, the Regional Director would find
you one as a GS-12.
12. During a recent climate survey done at Florence, the surveyors tried
to blame appellant for mistakes that were made by the Executive Staff.
13. Appellant has been discriminated against because of his race
(Hispanic) as there are very few Hispanics at his level (GM-13), and he
has never been promoted.
The basis of reprisal was added to the complaint. The agency dismissed
allegations 1-5, 7, 9 and 10 on the grounds that appellant failed to
contact an EEO Counselor in a timely manner. The agency determined that
appellant received his performance evaluation on August 3, 1993, but
appellant did not initiate contact with an EEO Counselor until January 5,
1994, after the expiration of the 45-day limitation period. The agency
concluded that since appellant's performance logs were utilized to prepare
his performance evaluation, appellant was aware at the time of the receipt
of his performance appraisal that there may have been discrimination.
Additionally, the agency stated that the bonus for employees at the GS-13
leval and above is based on the performance evaluation. Therefore, the
agency concluded that appellant should have been aware of the effect
that his performance appraisal would have on his yearly bonus when he
received the performance evaluation. With regard to allegation 7, the
agency determined that appellant received the performance improvement plan
letter on September 29, 1993, and therefore his EEO contact was untimely.
As for allegation 9, the agency noted that appellant presented a diary
of events that referred to appellant being approached by another employee
on August 11, 1993, when he was informed that he was being blamed for the
Satterwhite incident. The agency concluded that appellant's EEO contact
in January 1994 was therefore untimely. With regard to allegation 10,
the agency states that since this incident is listed before another
incident that occurred on September 3, 1993, it is reasonable to assume
that the remarks made by the Warden to the Disciplinary Hearing Officer
occurred several months before appellant's EEO contact. The agency stated
that allegation 6 has been processed and is awaiting a hearing before the
Commission. The agency accepted allegations 11 and 12 for investigation.
With respect to allegations 8 and 13, the agency withheld a determination
pending appellant's response to several questions on these matters.
Thereafter, appellant submitted an appeal to the Commission on July 24,
1996.
In Fred Murillo v. Department of Justice, EEOC Appeal No. 01965121 (March
6, 1997), we issued a letter closure wherein we found that appellant's
appeal was premature because the agency had not issued a final decision.
By letter dated March 15, 1997, appellant disputed our finding that his
appeal was premature. Appellant stated that his letter of July 24, 1996,
was an appeal of the agency's dismissal of the most critical parts of
his complaint.
ANALYSIS AND FINDINGS
Initially, we note that appellant's previous appeal was improperly
closed on the grounds that it was premature. The appeal should have
been addressed as a timely appeal of a final agency decision.
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.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See McGovern v. United States Postal
Service, EEOC Request No. 05901150 (December 28, 1990); Starr v. United
States Postal Service, EEOC Appeal No. 01890412 (April 6, 1989).
A determination of whether a series of discrete acts constitutes
a continuing violation depends on the interrelatedness of the past
and present acts. 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.
See Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989); Verkennes v. Department of Defense, EEOC Request
No. 05900700 (September 21, 1990); Maldonado v. Department of the
Interior, EEOC Request No. 05900937 (October 31, 1990). 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. Claytor, 469 F. Supp. 22, 26 (D. D.C. 1978).
In determining whether a continuing violation exists, the Commission
has relied on the decision in Berry, wherein the court set forth three
relevant factors:
The first is subject matter. Do the alleged acts involve the same type
of discrimination, tending to connect them in a continuing violation?
The second is frequency. Are the alleged acts recurring (e.g., a
biweekly paycheck) or more in the nature of an isolated work assignment
or employment decision? The third factor, perhaps of most importance,
is degree of permanence. Does the act have the degree of permanence
which should trigger an employee's awareness of and duty to assert
his or her rights, or which should indicate to the employee that the
continued existence of the adverse consequences of the act is to be
expected without being dependent on a continuing intent to discriminate?
Berry, 715 F.2d at 981. Incidents that are sufficiently distinct
to trigger the running of the limitations period do not constitute
continuing violations. See, e.g., Miller v. Shawmut Bank, 726
F. Supp. 337, 341 (D. Mass. 1989); Cogen v. Milton Bradley Co./Hasbro
Inc., 449 Empl. Prac. Dec. (CCH) �38,894 (D. Mass. 1989). In Cogen,
the court rejected the plaintiff's attempt to apply the continuing
violation theory to, among other allegations, an assignment issue.
The court stated that "discrete acts of discrimination taking place
at identifiable points in time" are not continuing violations for the
purpose of extending the limitations period. Id. at 58,757; see also
Edinboro v. Department of Health & Human Services, 704 F. Supp. 364,
367 (S.D. N.Y. 1988) (demotion not a continuing violation).
It is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant 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) (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).
In our decision in Fred Murillo v. Department of Justice, EEOC Appeal
No. 01943876 (July 21, 1995), we ordered the agency to consider
the applicability of the continuing violation theory in the event
it determined that allegations of appellant's complaint should be
dismissed on the grounds of untimely EEO contact. Upon review of the
final agency decision, we observe no evidence that the agency considered
the applicability of the continuing violation theory in rendering its
determination. Consequently, we find that the issue of a continuing
violation needs to be addressed. It is well-settled 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." Williams v. Department of Defense,
EEOC Request No. 05920506 (August 25, 1992). Moreover, where, as here,
a complainant alleges "recurring incidents" of discrimination, "an agency
is obligated to initiate an inquiry into whether any allegations untimely
raised fall within the ambit of the continuing violation theory." Guy
v. Department of Energy, EEOC Request No. 05930703 (December 16, 1993)
(citing Williams). As the Commission further held in Williams, where
an agency's final decision fails to address the issue of continuing
violation, the complaint "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, the
agency's decision to dismiss allegations 1-5, 7, 9 and 10 of appellant's
complaint on the grounds of untimely EEO contact is VACATED. Allegations
1-5, 7, 9 and 10 are hereby REMANDED to the agency for a determination
regarding whether a continuing violation has been established.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
The agency shall conduct a supplemental investigation into whether
appellant has established a continuing violation.
Thereafter, the agency shall decide whether to process or
dismiss allegations 1-5, 7, 9 and 10 of appellant's complaint.
29 C.F.R. �1614.106 et seq. The supplemental investigation and issuance
of the notice of processing or final decision must be completed within
thirty (30) calendar days of the date this decision becomes final.
A copy of the final decision or notice of processing must be submitted
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 (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:
Mar 2, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1As explained in greater detail later in this decision, an appeal of
the final agency decision was previously filed in this matter, but it
was improperly closed.