Cynthia D. Albarez, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 21, 1999
01982455 (E.E.O.C. Apr. 21, 1999)

01982455

04-21-1999

Cynthia D. Albarez, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Cynthia D. Albarez v. Department of the Navy

01982455

April 21, 1999

Cynthia D. Albarez, )

Appellant, )

)

v. ) Appeal No. 01982455

) Agency No. 97-63285-006

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 her 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 �501 of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. �791 et seq. The final agency decision was received

by appellant on January 6, 1998. The appeal was postmarked February 4,

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

(2), (3), and (4) due to untimely EEO Counselor contact and allegation

(5) for failure to state a claim.

BACKGROUND

The record indicates that on July 24, 1997, and October 9, 1997,

appellant, a Special Agent, GS-12, contacted an EEO Counselor with

regard to her complaints. Unable to resolve the matter informally,

appellant filed formal complaints dated September 4, 1997, and November

19, 1997, which were, subsequently, consolidated for processing under

Agency No. 97-63285-006. Therein, appellant alleged that she was

discriminated against based on race/color/national origin (Hispanic),

sex (female), mental disability (being perceived as mentally disabled),

and in reprisal for prior EEO activity and for being outspoken about the

agency's handling of child abuse investigations as a whistleblower when

from 1988 to present, she was denied opportunities for promotions and

overseas transfers. Appellant indicated that she was forced to undergo

a complete psychiatric, psychological examination, forced to move to

California, and received a low performance appraisal rating on July 11,

1997.

On January 5, 1998, the agency issued a final decision and defined

appellant's allegations as whether she was discriminated against based on

race/color/national origin (Hispanic), sex (female), mental disability

(being perceived as mentally disabled), and in reprisal for prior EEO

activity and for whistleblowing when:

She received a Level 3 - Fully Successful Performance Rating dated July 7,

1997;

She was transferred to Camp Pendleton, CA in 1990, for discriminatory

reasons;

She was perceived to have a mental disability by management in 1992/93;

She was denied career enhancing promotional opportunities when her

requested transfers to Spain, Portugal, Italy, Okinawa, JA and Guam

(March/April 1994) were denied; and

She was reprised against because of her participation in whistleblowing

activities.

On January 5, 1998, the agency issued a final decision dismissing

allegations (2), (3), and (4) due to untimely EEO Counselor contact.

The agency dismissed allegation (5) since it did not fall under the

purview of EEOC regulations. The agency accepted allegation (1),

excluding a portion of the basis of reprisal for whistleblowing, for

investigation.

On appeal, appellant contends that she was recently denied a transfer to

the Public Affairs Office at the agency's headquarters during the summer

(July/August) of 1997.

In response to appellant's appeal, the agency argues that its final

decision properly dismissed allegations (2) through (5). Specifically,

the agency asserts that the alleged transfer, psychological examination,

and denial of promotional opportunities/overseas transfers occurred from

1989 through 1996, the most recent denial of transfer being September

23, 1996, but appellant did not contact an EEO Counselor until 1997,

which was beyond the requisite time limit set by the regulations.

The agency further indicates that the allegations in the complaint did

not constitute a continuing violation since the incidents were separate

and distinct events. Specifically, the agency states that the dismissed

allegations concern matters entirely different from and unrelated to

the timely performance rating allegation, and the management officials

involved in each alleged discriminatory event were different. The agency

provides the names of those officials. The agency also indicates that

appellant had suspicions that she was being discriminated against as

early as 1990. In this regard, the record contains a copy of appellant's

letters dated May 10, 1990, and June 13, 1990, which were addressed to

two agency officials, concerning the alleged discriminatory actions,

i.e., transferring her to Camp Pendleton, CA in 1990, subjecting her to

psychiatric examinations during March and April 1990, and continuously

denying her career enhancing promotional opportunities through training,

assignments, and/or promotions.

ANALYSIS AND FINDINGS

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).

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 the present case, appellant alleged that she was subjected to a

continuing violation from 1988 to present. Specifically, appellant

alleged that she was subjected to discrimination when: (1) she received

her performance appraisal rating in July 1997; (2) she was transferred

to Camp Pendelton, CA in 1990; (3) she was subjected to a psychological

examination in or before 1993; (4) she was denied career enhancing

promotional opportunities/overseas transfers. The agency accepted

allegation (1) as timely.

The record indicates that the alleged incidents in allegations

(2) and (3) occurred in 1990, and in or before 1993, respectively.

Appellant contacted an EEO Counselor regarding the matters on July 24,

1997, which was beyond the requisite time limit set by the regulations.

Although appellant alleged a continuing violation, after a review of

the record, we find that each of the alleged discriminatory incidents,

i.e., the transfer and subjecting her to the psychological examination,

were separate and discrete incidents, which should have triggered any

suspicion of discrimination at the time they occurred. Furthermore, the

record, undisputed by appellant, indicates that appellant knew or should

have suspected that she was discriminated against concerning the matters

at the time of the incidents. The record contains a copy of appellant's

letter dated May 10, 1990, which was addressed to an Assistant Career

Services Director, wherein she alleged that she was discriminated against

when she was forced to transfer to CA and to undergo psychological

examinations. In addition, the agency, undisputed by appellant,

maintains that the allegations in the complaint were not interrelated

since different agency officials were involved in each alleged incident.

See Trapani v. Central Intelligence Agency, EEOC Request No. 05940037

(November 10, 1994). Based on the foregoing, we find that appellant

failed to present any persuasive arguments or evidence to show that she

contacted an EEO Counselor with regard to the subject allegations in a

timely manner pursuant to 29 C.F.R. �1614.105(a)(1).

With regard to allegation (4), the agency maintained that the alleged

incidents occurred from 1994 to 1996, the most recent being September

23, 1996. Upon review, we find that the alleged incidents, i.e., the

denial of career enhancing promotional opportunities/overseas transfers,

were separate and isolated incidents, which should have triggered any

suspicion of discrimination at the time they occurred. Furthermore,

the record contains a copy of appellant's letter dated June 13, 1990,

which was addressed to an agency Equal Employment Office Officer,

wherein she indicated that she was discriminated against when she was

continuously denied career enhancing promotional opportunities through

training, assignments, and/or promotions. The agency, undisputed by

appellant, also maintains that the allegations in the complaint were not

interrelated since management officials involved in each alleged incident

were different. Based on the foregoing, we find that appellant's July

24, 1997 EEO contact with regard to the incidents was untimely.

We note that by letter dated February 3, 1998, appellant raises a new

allegation of discrimination after the filing of the instant complaint,

i.e., the denial of her requested transfer to the Public Affairs Office

at the agency's headquarters in July/August 1997. Appellant is hereby

advised that if she wishes to further pursue the matter, she shall

contact an EEO Counselor within 15 days after she receives this decision.

The agency is hereby advised that if appellant seeks EEO counseling

regarding the new allegation as instructed above, the date she filed the

appeal statement in which she raised this allegation with the agency

shall be deemed to be the date of the initial EEO contact, unless she

previously contacted an EEO Counselor regarding this matter, in which

case the earlier date would serve as the EEO Counselor contact date.

Cf. Oatsha v. Department of the Navy, EEOC Request No. 05970201 (January

16, 1998).

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 (5) involved appellant's basis of reprisal as a whistleblower.

Upon review, we find that appellant's whistleblowing activity is not

a protected activity within the purview of EEOC regulations. See 29

C.F.R. �1614.101(b). It is noted that the agency accepted the basis of

reprisal for prior EEO activity for investigation.

CONCLUSION

The agency's decision to dismiss allegations (2), (3), and (4) due to

untimely EEO Counselor contact and allegation (5) for failure to state

a claim was proper and 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. �1614.604(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 to 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 21, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations