01983871_r
06-15-1999
Sharon P. Pindle, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Sharon P. Pindle, )
Appellant, )
) Appeal No. 01983871
v. ) Agency No. BXJCFO9712H1030
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
On April 16, 1998, appellant filed a timely appeal of a March 26, 1998
final agency decision dismissing allegations (a) to (i) of her complaint
for failure to contact an EEO Counselor in a timely manner and allegation
(i) on the alternative grounds that the allegation concerned a proposed
personnel action.
In dismissing allegations (a) to (i) of appellant's November 25,
1997 complaint, the agency stated that appellant failed to contact
an EEO Counselor within the 45-day time period.<1> The agency noted
that although appellant knew that she was being discriminated against
by June 10, 1997, as evidenced in a January 16, 1998 Memorandum,
she nonetheless failed to contact an EEO Counselor until October 1997.
Regarding allegation (i), the agency stated that the allegation concerned
a proposed personnel action.
On appeal, appellant specifically states that she is only challenging
the agency's dismissal of allegations (a), (b), (h), and (i) of the
agency's final decision. Dismissed allegations (a), (b), (h), and (i)
are identified in the final agency decision as whether appellant was
discriminated against on the bases of race (African American) and sex
(female) when the following occurred:
a. during the time period from June 23, 1997 to July 8, 1997, the [Chief
of the Transportation Branch] (Chief), treated her disparately when he
failed to provide her with the opportunity to be detailed or promoted
to the vacant position [GS-2130-13];
b. the Chief continuously primed male employees for success by giving
them prestigious assignments and refused to give her new assignments on
March 14, 1997;
h. on August 6 and August 8, 1997, the Chief stated that appellant was
not meeting all performance objectives; and
i. the Chief told appellant and others that the GS-2130-13 Traffic
Management Specialist position would most likely be given to a male with
prior military experience.
Regarding allegation (a), appellant asserts on appeal that the Chief
never gave her the opportunity to enhance her knowledge for the Traffic
Management Specialist position, GS-2130-13 and she was never detailed
or promoted to the position as was a White male co-worker (Person A).
Regarding allegation (b), appellant alleges that the priming of male
employees was not an isolated event but was a continuing practice of
the Chief. Regarding allegation (h), appellant argues that the Chief
discussed her performance objectives in the presence of others on August
6 and 8, 1997, and on October 8, 1997, and that the discussions violated
her privacy. Regarding allegation (i), appellant asserts that Person A
was selected for the position. Appellant also asserted that allegations
(a), (b), (h), and (i) reflect disparate treatment, and that she was
subjected to a hostile work environment.
Generally, an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory.
See 29 C.F.R. �1614.105(a)(1). EEOC Regulation 29 C.F.R. �1614.604(c)
provides that the time limits in Part 1614 are subject to waiver,
estoppel and equitable tolling. The Commission has held that the
time requirement for contacting an EEO counselor may be waived when
the complainant alleges a continuing violation; that is, a series of
related discriminatory acts, at least one of which falls within the
applicable time period. McGivern v. U.S. Postal Service, EEOC Request
No. 05901150 (December 28, 1990). In determining whether a continuing
violation is present, it is important to consider whether 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); Hagan v. Department of
Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993).
Regarding allegation (a), the Commission finds that the agency's
dismissal was proper. Appellant does not dispute, and the Counselor's
Report reflects, that she did not contact an EEO Counselor until
October 17, 1997, for events that occurred in June and July 1997.
Appellant's contact was therefore untimely and appellant has not provided
justification sufficient to extend the time limit. We find that the
alleged details and promotions were separate and discrete events
which should have given rise to a reasonable suspicion on the part of
appellant that she was being discriminated against when they occurred.
See Woljan v. Environmental Protection Agency, EEOC Request No. 05950361
(October 5, 1995). Moreover, the record contains a January 16, 1998
Memorandum from appellant to the agency which appellant submitted in
response to the agency's request to provide additional clarification
and information regarding her formal complaint. In the Memorandum,
appellant detailed several incidents of alleged discrimination beginning
in 1995. Appellant specifically stated that since March 10, 1997, and
continuing, the Chief targeted her as a problem employee and that on
June 10, 1997, when he kept going back and forth on her request for an
additional week of leave, she finally told him to disregard her request.
Appellant stated that she felt at that time that his actions were intended
to harass her. Accordingly, appellant's October 1997 EEO contact for
events that occurred in June and July 1997, was untimely. See Baldwin
County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam)
("One who fails to act diligently cannot invoke equitable principles to
excuse lack of diligence"); Rys v. U.S. Postal Service, 886 F.2d 443,
446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff
must have diligently pursued her claim").
Regarding allegation (b), the Commission finds that appellant's EEO
contact was also untimely. Appellant's request for an assignment was
refused on March 14, 1997. Therefore, her October 17, 1997 contact was
untimely. To the extent that appellant is asserting that the priming
for assignments by the Chief is ongoing, we find that the refusal of
an assignment is a separate and discrete event that has the degree of
permanence which should have triggered appellant's awareness to assert her
rights. 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) �38,894
(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.
Moreover, the record evidence indicates that appellant was able to
perceive the overall pattern of alleged discrimination by the Chief
months prior to appellant's October 1997 contact.
The Commission finds that allegation (h) is more appropriately dismissed
for failure to state a cognizable claim. See 29 C.F.R. �1614.107(a);
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994). The record reveals that appellant is contending that the actions
complained of violated her privacy. The Commission has consistently
held that an alleged violation of the Privacy Act is outside the purview
of the EEO process. See Bucci v. Department of Education, EEOC Request
No. 05890289 (April 12, 1989). When an employee believes that an agency
has violated rights under the Privacy Act, the proper remedy is provided
under that legislation. See Moore v. U. S. Postal Service, EEOC Appeal
No. 01943229 (October 27, 1994).
Regarding allegation (i), the Commission finds that the allegation
does not state a claim since it relates to a remark made by the Chief.
Simon v. U.S. Postal Service, EEOC Request No. 05900866 (October 3,
1990)(a remark or a comment, unaccompanied by concrete action, is not
a personal deprivation sufficient to render an individual aggrieved).
Moreover, it also appears that allegation (i) is background information,
and not a live allegation, offered to support appellant's allegation that
she was not promoted, detailed or selected to the Traffic Management
Specialist position, GS-2130-13 and the agency's March 26, 1998 letter
reflects that the agency has accepted for investigation the allegation
of non-selection to that position.
Accordingly, consistent with our discussion, the agency's final decision
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 15, 1999
DATE Carlton M. Hadden, Acting Director
1In a March 26, 1998 letter to appellant, the agency accepted allegations
it identified as allegations 1, 2a to 2h and 3. Included among the
accepted allegations was whether appellant was subjected to disparate
treatment and a hostile work environment and whether she was discriminated
against when she was not selected for the Traffic Management Specialist
position, GS-2130-13 in September 1997.