01983705
06-23-1999
Mary Ramos, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Mary Ramos v. Department of the Navy
01983705
June 23, 1999
Mary Ramos, )
Appellant, )
) Appeal No. 01983705
v. ) Agency No. 98-60042-001
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) 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 the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The FAD
was dated March 19, 1998. The appeal was postmarked on April 7, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed two of the
allegations in appellant's complaint for untimely EEO Counselor contact.
BACKGROUND
Appellant initially contacted an EEO Counselor on October 26, 1996.
She then filed a formal complaint on October 31, 1997, alleging
discrimination on the bases of race (Hispanic), age (D.O.B. 1/11/49),
and reprisal (previous EEO activity) when:
(a) from September 1993 through December 1996, she was instructed to
perform duties outside of her position description;
(b) in December 1996, she was not selected for the Housing Management
Assistant position, GS-1173-5/7;
(c) on September 12, 1996, she was assigned a specified lunch break;
(d) in December 1996, she was issued an early performance evaluation and
told that she would receive a minimally successful performance rating;
(e) on December 31, 1996, she was reassigned from the Housing Department
to the Administration Department;
(f) in February 1995, she applied for, but was not selected for the
Assistant Housing Manager position, GS-1173-07;
(g) from January 21, 1996 through February 1, 1996, she was denied a
cash advance and original travel orders for a training class, entitled
"Introduction to Family Housing."
In its FAD, the agency dismissed allegations (f) and (g) for untimely
counselor contact. According to the FAD, appellant alleged that
incidents (f) and (g) were timely based on the continuing violation
theory. The agency accepted allegations (a) through (e) as timely.
This appeal followed.
In her statement on appeal, dated April 2, 1998, appellant stated that
"[she] was aware of the 45-day time frame."
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days
of the effective date of the personnel action. EEOC Regulation 29
C.F.R. �1614.105(a)(2) provides that the agency or the Commission shall
extend the 45-day time limit when the complainant shows that he or she was
not notified of the time limits and was not otherwise aware of them.
The Commission has also held that the time requirement for contacting an
EEO Counselor can be waived as to certain allegations within a complaint
when the complainant alleges a continuing violation, that is, a series
of related discriminatory acts, one of which falls within the time period
for contacting an EEO Counselor. See McGivern v. USPS, EEOC Request No.
05901150 (December 28, 1990). If one or more of the acts falls within
the 45-day period for contacting an EEO Counselor, the complaint is
timely with regard to all that constitutes a continuing violation.
See Valentino v. USPS, 674 F.2d 56, 65 (D.C. Cir. 1982); Verkennes
v. Department of Defense, EEOC Request No. 05900700 (September 21, 1990).
Relevant to the existence of related discriminatory acts is 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 official was involved.
Woljan v. Environmental Protection Agency, EEOC Request No. 05950361
(October 5, 1995). Incidents which are sufficiently distinct to trigger
the running of the limitations period do not constitute a continuing
violation. Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th
Cir. 1983), cert. denied, 479 U.S. 868 (1986).
In the instant case, appellant did not initiate contact with an EEO
Counselor within 45 days of alleged incidents (f) and (g). Incident (f)
occurred in February of 1995 and incident (g) occurred January 21, 1996
through February 1, 1996. Appellant, however, did not contact an EEO
Counselor until October 26, 1996, more than 45 days after each of these
incidents. Appellant cannot claim that she was not aware of the time
limits for contacting an EEO Counselor when the incidents occurred. In
her statement on appeal, appellant stated clearly that she was aware of
the time limits. Also appellant had filed previous EEO complaints, thus
indicating an awareness on her part of the time limit for contacting an
EEO Counselor.
Allegations (f) and (g) are not part of a continuing violation.
Allegation (f) involves a non-selection. A non-selection is an incident
which is sufficiently distinct to trigger the limitations period and
therefore cannot be part of a continuing violation. Allegation (g)
involves the denial of a cash advance and original travel orders.
Allegation (g) is not part of a continuing violation because it was an
isolated employment decision with permanence which should have triggered
appellant's awareness that she had to assert her rights, and unlike
the timely allegations, the decision was not made by her supervisor.
The decision was made instead, by a different official, the Director of
Administrative Services.
We find, therefore, that appellant's EEO Counselor contact was untimely
with respect to allegations (f) and (g). Additionally, allegations (f)
and (g) cannot be made timely because they were not part of a continuing
violation.
CONCLUSION
Accordingly, the decision of the agency 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:
June 23, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations