Alejandro Cortez, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 16, 1999
01974718 (E.E.O.C. Apr. 16, 1999)

01974718

04-16-1999

Alejandro Cortez, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Alejandro Cortez v. Department of the Navy

01974718

April 16, 1999

Alejandro Cortez, )

Appellant, )

)

v. ) Appeal No. 01974718

) Agency No. DON-97-65888-013

)

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

The Commission finds that the agency's final decision dated April 17,

1997 which dismissed a portion of appellant's complaint, on the grounds

of untimely EEO counselor contact, is proper pursuant to the provisions

of 29 C.F.R.�1614.107(b).

The record shows that appellant sought EEO counseling on October 31,

1996, alleging that he had been discriminated against on the bases of

national origin (Hispanic), age (38) and reprisal for prior EEO activity

when: (a) his supervisor refused to keep him as an inside machinist;

(b) on August 29, 1996, he was issued an unacceptable midyear review

of a level 4 on his performance evaluation; and, (c) on July 29, 1996,

he was denied a promotion to the position of machinist, WG-3414-11,

announcement number 95-0557. Appellant subsequently filed a formal

complaint of discrimination alleging that he had been discriminated

against on the bases of national origin (Hispanic/Mexican-American),

age and reprisal when: (a) on September 17, 1996, he was returned

from Components Machinist Production, Code 97201 to his parent shop,

Preventive/Corrective Maintenance Production Team Center, Code 97520; (b)

on August 28, 1996, he was issued a level 4, "exceeds fully successful"

on his performance appraisal; and, (c) on July 29, 1996, he became

aware that he was denied consideration for the position of machinist,

WG-3414-11, advertised under announcement number 95-0557.

The agency issued a final decision accepting allegation (a) for

investigation. Allegations (b) and (c) were dismissed on the basis of

untimely EEO counselor contact after the agency found that appellant's

initial EEO counselor contact on October 31, 1996, had occurred beyond

the 45-day time limit provided by EEOC Regulations. The agency also

dismissed the basis of age because appellant was not 40 years old at

the time of the alleged discriminatory incidents.

On appeal, appellant contends that his EEO counselor contact was timely

because he is alleging a continuing violation. Appellant further

contends that he did not suspect discrimination until the September 17,

1996 incident. On appeal, the agency contends that appellant has failed

to show a continuing violation because the allegations raise "three

distinct personnel actions that are not connected" and "three different

management officials". The agency further contends that appellant,

a complainant with prior EEO activity, was fully aware of the 45-day

time limit and should have suspected discrimination at the time of the

alleged discriminatory events.

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) s38,894 (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).

A review of allegations (b) and (c) persuades the Commission that they

were properly dismissed by the agency. On appeal appellant contends that

he did not suspect that he had been discriminated against on July 29,

1996, when he was not considered for a promotion. He further claims that

he did not suspect discrimination on August 28, 1996, when he was issued

a level 4 performance rating. He finally contends that he realized

both incidents were discriminatory when on September 17, 1996, he was

returned to the Preventive/Corrective Maintenance Production Team Center.

Nevertheless, appellant has failed to provide evidence sufficient to

support his contention that he did not suspect discrimination until

September 1996, although before that date his performance had already

been rated in a manner that he did not agree with and also, he had been

denied consideration for a promotion.

Based on the foregoing, we conclude that appellant suspected or should

have suspected that the supervisor was engaging in unlawful employment

discrimination in July and August, 1996, and should have sought EEO

counseling within 45 days of his suspicions.

Finally, we find that the agency properly dismissed the basis of age of

appellant's complaint. EEOC Regulations require that in order to raise

discrimination on the basis of age, the aggrieved individual must be at

least 40 years of age. 29 C.F.R. �1614.103(a). The record shows that

appellant was 38 years old at the time of the alleged discriminatory

incidents.

Accordingly, the final agency's decision dismissing allegations (b) and

(c) and the basis of age is AFFIRMED.

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. �l6l4.604(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 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:

April 16, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations