01983397
06-23-1999
Alfredo Martinez Jr., Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Special Weapons Agency), Agency.
Alfredo Martinez Jr. v. Department of Defense
01983397
June 23, 1999
Alfredo Martinez Jr., )
Appellant, )
)
v. ) Appeal No. 01983397
) Agency No. 1297-05
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Special Weapons )
Agency), )
Agency. )
______________________________)
DECISION
On March 27, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated February 27, 1998, pertaining to
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 (ADEA), as amended,
29 U.S.C. �621 et seq. The agency characterized appellant's complaint
as alleging that he was subjected to discrimination on the bases of race
(unspecified), national origin (Hispanic), and age (61) when:
On May 19, 1997, appellant was advised that a call had been made to the
Office of Inspector General (OIG) hot line alleging his abuse of time
cards, which for him marked the beginning of continual harassment from
management and subordinates;
On July 16, 1997, an OIG meeting was conducted with appellant in a
manner that was designed to intimidate him;
On July 29, 1997, appellant's request for TDY to attend a NUMIS
management meeting was denied;
On August 6, 1997, appellant was advised that he was no longer
responsible for supervising;
On August 6, 1997, appellant was advised by his supervisor that he
should get ready to take leave;
On September 22, 1997, appellant received a Notice of Proposed
suspension;
On September 26, 1997, appellant was locked out of his work area;
On or about September 26, 1997, appellant's request for the early out
VSIP was held in abeyance; and
On November 14, 1997, appellant was issued a suspension for 14 days
beginning November 17, 1997.
The agency accepted allegations (3), (4), (7), (8), and (9) for
investigation, and dismissed allegations (1), (2), (5), and (6) pursuant
to EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state a claim,
and, alternatively, allegation (1) pursuant to 29 C.F.R. �1614.107(b),
for failure to initiate contact with an EEO Counselor in a timely manner.
Specifically, the agency determined that appellant failed to show that he
suffered harm to the terms, conditions or privileges of his employment
as a result of the incidents identified in allegations (1), (2), (5),
and (6). Additionally, the agency concluded that appellant's August 20,
1997 initial EEO Counselor contact occurred more than forty-five (45)
days from the date on which the incident in allegation (1) occurred,
and was, therefore, untimely.
On appeal, appellant contends that the agency improperly identified the
allegations in his complaint. Specifically, appellant asserts that the
foregoing actions constituted harassment which created a hostile work
environment and resulted in his constructive discharge in December 1997.
Additionally, appellant contends that allegation (1) was improperly
dismissed as untimely because it was part of a continuing violation.
In response, the agency asserts that appellant acknowledged that on
May 19, 1997, he learned that an anonymous telephone call was made
concerning his alleged time card abuse. The agency also contends that
appellant was at all times aware of the identification of the issues,
as he signed the intake report which identified them, and referred to
them specifically in his formal complaint. The agency also argues that
appellant failed to establish a continuing violation because there exists
no pattern of like or interrelated events which would allow allegation
(1) to be included as timely.
The Commission notes that the record contains a letter from appellant
dated June 9, 1997, and entitled "Anonymous Call Investigation 7nd Morale
Investigation." Therein, appellant indicated that he was "concerned that
[his] civil rights will be violated or possibly have been violated ..."
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
We find that the agency improperly dismissed allegations (1), (2), (5),
and (6) for failure to state a claim. Standing alone, each allegation
fails to state a claim. However, in his complaint, appellant alleged
a series of events which allegedly occurred from May 19, 1997 through
November 14, 1997. Specifically, appellant alleged that he was subjected
to harassment which created a hostile work environment. Instead of
treating these events as incidents of the claim of harassment, however,
the agency looked at them individually. Thus, we find that the agency
acted improperly by treating the matters raised in appellant's complaint
in a piecemeal manner. See Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 3, 1994) (an agency should not
ignore the "pattern aspect" of a complainant's allegations and define
the issues in a piecemeal manner where an analogous theme unites the
matter complained of). Consequently, when allegations (1), (2), (5), and
(6) are viewed in the context of appellant's complaint of harassment,
they state a claim and the agency's dismissal of those allegations for
failure to state a claim was improper.
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 forty-five (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 forty-five (45)
day limitation period is triggered. See Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his 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 McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990).
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 of Louisiana State Univ.,
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).
Relevant to the determination are whether the acts were recurring 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; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, 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.
Jackson v. Department of the Air Force, EEOC Request No. 05950780 (June
27, 1997).
As the incident identified in allegation (1) contributed to the alleged
hostile work environment to which appellant was subjected, it is clearly
related to the otherwise timely allegations. However, in his June 9,
1997 letter, appellant identified a clear suspicion of discrimination.
Specifically, appellant raised his concern that his "civil rights will
be violated or possibly already have been violated." Based on this
suspicion, we find that appellant was under an obligation to seek EEO
counseling and assert his rights. As appellant's August 20, 1997 initial
EEO Counselor contact occurred more than forty-five (45) days after
appellant suspected discrimination with regard to allegation (1), we find,
that allegation (1) was untimely, and that appellant failed to establish
that allegation (1) was part of a continuing violation. Consequently,
we find that dismissal was proper pursuant to 29 C.F.R. �1614.107(b).
Accordingly, the agency's decision to dismiss allegation (1) was
proper, and is AFFIRMED for the reasons set forth herein. The agency's
decision to dismiss allegations (2), (5), and (6) is hereby REVERSED.
Those allegations are REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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 acknowledgment 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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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:
June 23, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations