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