01982455_r
04-21-1999
Cynthia D. Albarez, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
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