01983945
06-18-1999
Abel Ramos, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Abel Ramos v. Department of the Navy
01983945
June 18, 1999
Abel Ramos, )
Appellant, )
)
v. ) Appeal No. 01983945
) Agency No. 98-68322-002
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
INTRODUCTION
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. The final agency decision was received by
appellant on March 30, 1998. The appeal was postmarked April 18, 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 on appeal are whether the agency properly dismissed allegations
(1) through (5) due to untimely EEO Counselor contact and allegation
(6) for failure to state a claim.
BACKGROUND
The record indicates that on December 1, 1997, appellant, a Supervisory
Computer Specialist, contacted an EEO Counselor with regard to
his complaint. Unable to resolve the matter informally, appellant
filed a formal complaint dated February 18, 1998, which was later
clarified, alleging discrimination based on national origin (Hispanic).
Specifically, appellant alleged harassment when:
(1) On April 30, 1996, an agency managerial official had appellant's
supervisor change two of appellant's employees performance appraisals
from Exceeds Fully Successful to Outstanding;
(2) In or before January 1997, the managerial official did nothing to
assist Hispanic minorities to advance to senior positions;
(3) In March 1997, the managerial official refused to allow appellant
to hire a former contract employee;
(4) On May 12, 1997, the managerial official chastised appellant in a
meeting;
(5) On July 7, 1997, appellant was singled out by the managerial official
for being absent from a meeting; and
(6) On November 24, 1997, appellant realized that the managerial official
failed to approve appellant's recommendations for awards to his employees,
whereas all other supervisors' recommendations for awards were approved.
On March 26, 1998, the agency issued a final decision dismissing
allegations (1) through (5) due to untimely EEO Counselor contact and
allegation (6) for failure to state a claim. The agency stated that
appellant's EEO Counselor's contact on December 1, 1997, with regard
to the alleged incidents in allegations (1) through (5) was beyond the
requisite time limit. With regard to allegation (6), the agency indicated
that appellant was not aggrieved since he failed to show any action that
was taken against him as a result of the alleged incident or how the
alleged incident caused him to suffer a personal harm or loss with respect
to a term, condition, or privilege of his employment. Furthermore,
the agency stated that although appellant's EEO Counselor contact with
regard to allegation (6) was timely, since it failed to state a claim,
appellant failed to show that it was related to the untimely allegations.
On appeal, appellant contends that his complaint involves continuing
harassment on the part of the responsible managerial official, and he
was aggrieved as a result of the alleged incidents.
ANALYSIS AND FINDINGS
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.
Allegation (6) involved the responsible managerial official's mistreatment
of appellant when appellant's recommendations for awards for his
employees were not approved, whereas the responsible managerial official
approved other supervisors' award recommendations for their employees.
We find that this disparate treatment affected a term, condition, or
privilege of appellant's employment, i.e., his supervisory decision of
who to nominate for awards was rejected. Since appellant alleged that
this rejection was a result of prohibited discrimination against him,
we find that allegation (6) states a claim.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
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 McGivern 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).
Allegations (1) through (5) occurred from April 30, 1996 through July 7,
1997. Appellant contacted an EEO Counselor with regard to the matters
on December 1, 1997, which was beyond the 45-day time limit set by the
regulations. However, upon review, we find that appellant was clearly
alleging harassment and a hostile work environment, and identified a
series of related incidents concerning his working conditions and the
undermining of his supervisory role. The record indicates that these
incidents were perpetrated by the same responsible managerial official.
Furthermore, we find that timely allegation (6) is related to allegations
(1) through (5) since all of those incidents involve the responsible
managerial official's disparate treatment which created a hostile
work environment. Therefore, we find that appellant has established
a continuing violation and the time requirements for allegations (1)
through (5) are properly waived.
CONCLUSION
Accordingly, the agency's decision to dismiss allegations (1) through (5)
due to untimely EEO Counselor contact and allegation (6) for failure to
state a claim was improper and is REVERSED. The complaint is REMANDED
to the agency for further processing in accordance with this decision
and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint 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 acknowledgement 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 (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:
June 18, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations