01a00165
02-28-2000
Alfredo Garcia, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Alfredo Garcia, )
Complainant, )
)
v. ) Appeal No. 01A00165
) Agency No. DON 99-00216-009
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On September 30, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
September 13, 1999, 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.<1> The Commission accepts the
current appeal in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issues presented herein, are whether the agency properly dismissed
claim one for failure to initiated timely contact with an EEO Counselor,
and claim two for failure to raise the issue with an EEO Counselor.
BACKGROUND
The record reflects that complainant initiated contact with an EEO
Counselor on June 1, 1999. During the counseling period, complainant
stated the following:
From 1970 through September 1991 he was not selected for VRA positions:
On September 17, 1998, he received an evaluation showing that his
performance had changed from �Outstanding� to �Exceeds Fully Successful�;
He was told in October 1998, to report to his supervisor;
He was not allowed to attend RCRA training in March 1999; and
In May 1999, he was not allowed to attend the Texas Natural Resources
Conservation Commission Trade Fair.
Unable to resolve this matter informally, complainant filed a formal
complaint on August 4, 1999 claiming he was the victim of unlawful
employment discrimination on the bases of his national origin (Hispanic)
and reprisal (prior EEO activity). The formal complaint was comprised
of the following:
From 1970 through September 1991, complainant was not hired for a
position he applied for after he filed complaints with the G.I. Forum,
congressman Solomon Ortiz and Grace Saenz; and
Complainant has learned that the agency has decided to contract out
for positions including complainant's.
On August 29, 1999, the agency issued a final decision dismissing
complainant's complaint on two grounds. First, the agency found that with
regards to claim one, complainant failed to initiate timely contact with
an EEO Counselor. Specifically, the agency determined that the latest
discriminatory event occurred in September 1991, and that complainant's
initial EEO Counselor contact on June 1, 1999, was more than forty-five
days after the matter raised in the allegation purportedly occurred.
Second, the agency found that claim two was not raised with an EEO
Counselor during the pre-complaint stage. Therefore, the claim cannot
be included within the Formal complaint. In addition, the agency claims
that claim two involves a proposed personnel action and therefore does
not state a claim.
On appeal, complainant, through his attorney, argues that the above claims
are instances of harassment and should not be considered individually,
but rather as a whole, thus establishing a hostile work environment.
ANALYSIS AND FINDINGS
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). 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.
Upon review of complainant's formal complaint, it is clear that
complainant viewed all the incidents when he was not selected for VRA
positions as part of a continuing violation. The Commission has 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 or discriminatory
acts, or the maintenance of a discriminatory system or policy before
and during the filing period. See McGiven v. USPS, EEOC Request
No. 05901150 (December 28, 1990). If one or more of the acts falls
within the forty-five-day period for contacting an EEO Counselor, the
complaint is timely with regard to all that constitute 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). 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). It is necessary to determine whether the acts are
related by a common nexus or theme. See Milton v. Weinberger, 645 F.2d
1070 (D.C. Cir. 1981).
In the case at hand, complainant's claim regarding non-selections from
1970 to September 1991, involves a number of potentially interrelated
incidents of discrimination orchestrated by agency officials. However,
in applying the continuing violation theory, one consideration is whether
a complainant had prior knowledge or suspicion of discrimination and the
effect of this knowledge. See Sabree v. United Brotherhood of Carpenters
& Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990). The Commission
described Sabree as holding that a 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 experienced a series of acts and is thereby able to perceive the
overall discriminatory pattern. Hagan v. Department of Veterans Affairs,
EEOC Request No. 05920709 (Jan. 7, 1993).
Here, we find that the alleged discriminatory actions from 1970 through
September 1991, were discrete acts which prompted complainant to
have a reasonable suspicion of discrimination at the time that they
occurred. We note, for example, that in the EEO Counselor's report,
complainant stated that he was not selected for VRA positions from 1970
through September 1991 because he was Hispanic and because he filed a
congressional. Clearly, within the twenty year period in which he was not
selected, he should have had a reasonable suspicion of discrimination. In
the record, and on appeal, complainant has failed to present adequate
justification pursuant to 29 C.F.R. �1614.105(a) (2), for extending
the limitation period beyond forty-five days. Accordingly, the agency's
decision to dismiss the claim of non-selection from 1970 through September
1991, for failure to initiate contact with an EEO Counselor in a timely
fashion was proper and is AFFIRMED.
With regards to claim two, that the agency has decided to contract out
complainant's position, the Commission finds that the agency properly
dismissed this claim. Specifically, Volume 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2))
states, in pertinent part, that an agency shall dismiss a complaint
which raises a matter that has not been brought to the attention of
an EEO Counselor, and is not like or related to a matter on which the
complainant has received counseling. A later claim or complaint is "like
or related" to the original complaint if the later claim or complaint
adds to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990).
Here, claim two fails to clarify claim one or the original complaint
and cannot be expected to grow of the original complaint during the
investigation.<2>
As a final matter, the Commission will not consider the complainant's
claim of hostile work environment because in accordance with this
decision, there are no events in which the Commission can consider to
be instances of harassment.
CONCLUSION
For the reasons set forth herein, the Commission hereby AFFIRMS the
decision of the agency dismissing the current complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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 (Z1199)
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:
February 28, 2000
________ ___________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Since the Commission has affirmed the agency's decision to dismiss claim
two for failure to raise the claim with an EEO Counselor, the Commission
will not consider the agency's alternative ground for dismissal, failure
to state a claim.