01986488
10-14-1999
David W. Lovato, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
David W. Lovato v. Department of the Air Force
01986488
October 14, 1999
David W. Lovato, )
Appellant, )
)
)
v. ) Appeal No. 01986488
) Agency No. HPOF98127
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On August 31, 1998, appellant filed a timely appeal of an August 4, 1998
final agency decision, which was received on August 5, 1998, dismissing
several allegations in his complaint, pursuant to 29 C.F.R. �1614.107(b),
due to untimely EEO Counselor contact.
The record indicates that appellant filed a formal complaint, dated
July 14, 1998, which incorporated his letter dated April 29, 1998,
raising forty (40) allegations (allegations a through mm). Thereafter,
by letter dated July 20, 1998, appellant withdrew allegations c, i, j,
k, l, m, n, s, v, w, x, z, bb, ee, gg, and ll from further processing.
In its final decision, the agency identified the allegations of
appellant's complaint, excluding those that were withdrawn, as whether
appellant was discriminated against when:
a. From January 1997 to July 25, 1997, Supervisor #1 posted six
inaccurate and out of sequence entries in his AF 971 record;
b. From July 17, 1997 to the present time, management monitored his
arrival and quitting times;
d. On October 8, 1997, Supervisor #1 failed to fairly evaluate a
suggestion that appellant had previously submitted through the Base
Suggestion Program and then implemented the suggestion without giving
appellant proper credit for the suggestion;
e. In January 1998, management failed to remove a notice of oral
admonishment from his AF 971 record;
f. On January 20, 1998, Supervisor #2 issued him a "Decision to
Reprimand" letter;
g. On January 20, 1998, Supervisor #2 humiliated him when he grabbed
a chair from appellant's hands in the presence of appellant's coworkers;
h. On January 20, 1998, Supervisor #2 assigned him a 3-day suspense
tasking (regarding his position in training);
o. On January 24, 1998, Supervisor #3 improperly docked appellant's
pay for two consecutive pay periods for a 3-day suspension;
p. On January 28, 1998, Supervisor #2 reported appellant to the Security
Police as a prime suspect after his private vehicle was "keyed" in the
parking lot;
q. In February 1998, he became aware that management failed to remove
two "late for work" entries from his AF 971 record after the regulatory
one year time limitation for removal had expired;
r. On February 2, 1998, Supervisor #3 failed to respond to his request
that he be allowed to work as an augmentee for the Hill AFB Ready Program
causing him to lose 56 hours of overtime pay;
t. On February 4, 1998, management issued him a "Proposed Three Day
Suspension" letter;
u. On February 4, 1998, Supervisor #2 issued him a "Notice of Proposed
Suspension" letter for failure to update the Computer Training Tracking
System in a timely manner;
y. On March 13, 1998, Supervisor #2 forced him to volunteer for an
extended hour long lunch period;
aa. On March 26, 1998, Supervisor #2 denied his request to go to the
National Image Conference;
cc. On March 30, 1998, management forced him to provide them with a copy
of a written statement he had submitted to the Agency EEO Office which
was used against him when management issued him a "Notice of Proposed
Suspension" letter that eventually led to an official 5-day suspension;
dd. On April 1, 1998, he was not selected for a GS-1750-11 Instructional
Systems Instructor position;
ff. On April 2, 1998, he overheard Supervisor #2 tell a Civilian
Personnel Classification Specialist that he intended to terminate
appellant's federal employment;
hh. On April 27, 1998, he, after being on leave under a physician's
care, became aware that management had placed 3 messages on his telephone
answering service requesting that he report for stress counseling;
ii. On April 28, 1998, he became aware that 75th MSS management was
attempting to get an identified Civilian Classification Specialist to
take adverse action against appellant for referring to that individual
as a racist;
jj. On May 15, 1998, Supervisor #2 issued him a 5-day suspension for
making unfounded, false, and malicious statements about him;
kk. On several unspecified dates, management denied him access to
training; and
mm. On June 18, 1998, Supervisor #2 issued him a Letter of Counseling.
The agency accepted allegations y through mm for investigation and
dismissed allegations a through u due to untimely EEO Counselor contact.
The agency stated that appellant's April 29, 1998 EEO Counselor contact,
with regard to the dismissed allegations, was beyond the 45-day time
limit.
On appeal, appellant contends that his complaint constituted a continuing
violation. Appellant also indicates that in early February 1998, he
contacted his EEO Counselor and told him that he just received the 3-day
suspension and he also had many other complaint issues and that he wanted
to submit a written complaint for each issue. Appellant states that
at that time, the Counselor told him that he had the 45-day time limit
to request EEO counseling for those incidents. Appellant indicates
that when it was getting close to the 45-day time limit, he called
the Counselor and was informed that if he could show his issues to be
on-going and interrelated, he could have an additional 60-day extension.
After this telephone conversation, appellant asserts that he was "under
the impression and honestly believed that [he] had a 60-day extension
because [he] believed [that he] could show that [his] EEO issues were
on-going and interrelated."
With regard to the July 20, 1998 withdrawal, appellant contends that he
agreed to withdraw the sixteen issues in his complaint (allegations c, i,
j, k, l, m, n, s, v, w, x, z, bb, ee, gg, and ll) because the Counselor
told him that if he dropped these issues, the remaining issues in his
complaint would go forward for a complete investigation without any
delay.
In response to appellant's appeal, the agency asserts that according
to the EEO Counselor, he did not grant appellant an extension of
the 45-day time limit nor did he tell appellant that the remaining 23
allegations, which he did not withdraw, would be forwarded for a complete
investigation. The agency states that according to the EEO Counselor,
appellant was told that those 23 allegations would still be sent to the
General Law Office (GAM) for legal review. In support of its contention,
the agency submits a written memorandum from the EEO Counselor dated
October 5, 1998, verifying its arguments. With regard to the timeliness
of the allegations, the agency indicates that the alleged incidents do
not constitute a continuing violation. The agency further indicates
that there is no evidence to indicate that appellant did not know or
should not have reasonably known about discrimination at the time of
the alleged incidents.
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 alleges 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).
In order to establish a continuing violation, the complainant must show
that he did not know, could not have reasonably known, and could not
have reasonably been expected to know of the discrimination. See Wallace
v. Department of Justice, EEOC Appeal No. 01922669 (December 15, 1992).
Upon review, we find that the dismissed allegations occurred from
January 1997 through February 1998. Appellant contacted an EEO Counselor
concerning the matters on April 29, 1998, which was beyond the 45-day
time limit set by the regulations. Although appellant contends on appeal
that he called an identified EEO Counselor in early February 1998, we
find that there is no evidence in the record that he intended to seek
EEO counseling at that time. See Gates v. Department of the Air Force,
EEOC Request No. 05910798 (November 22, 1991). We note that the record
contains appellant's letter dated February 4, 1998, which was addressed to
the EEO Counselor, wherein he alleged that the agency breached a August
20, 1997 settlement agreement, which resolved his prior EEO complaint.
We note that in that letter, appellant did not request EEO counseling
with regard to his complaint at issue nor is there any evidence that
that letter was intended as his request for EEO counseling.
Appellant also indicates that when it came close to the 45-day deadline,
he called the Counselor and told him that he needed more time to
investigate his complaint. During that conversation, appellant states
that he was informed of an extension of the 45-day time limit if he
could show a continuing violation. Appellant, however, failed to show
any evidence nor is there any evidence in the record that appellant was
granted such an extension.
Appellant also contends that his allegations in the complaint constitute a
continuing violation. Upon review, we find that the dismissed allegations
do not constitute a continuing violation. Specifically, allegations a,
e, and q concern appellant's personnel record and allegations d, f,
h, o, r, t, and u concern disciplinary actions, an award/credit, an
assignment, pay, and overtime. We find that these allegations involve
a series of actions that are sufficiently distinct enough to trigger
the running of the 45-day time limit. Furthermore, it appears that
appellant unsuccessfully brought the alleged discriminatory matters to
the attention of management in order to informally try to resolve the
matters at the time of the incidents. However, the Commission has held
that the internal appeal of an agency action does not toll the running
of the limitation period. See Hosford v. Veterans Administration,
EEOC Request No. 05890038 (June 9, 1989).
With regard to allegations g and p, which involve appellant's alleged
discriminatory working conditions occurring in January 1998, the record
indicates that appellant knew that he was discriminated against, at the
latest, in February 1998, when he made an inquiry with the identified
EEO Counselor concerning his complaint. After a thorough review of
the record, we find that appellant has not demonstrated that he did not
suspect discrimination at the time of these incidents, nor that he was
unaware of the 45-day time limit.
Allegation b involves management's alleged discriminatory monitoring
of appellant's working hours from July 17, 1997 through the present.
Taking into consideration appellant's February 1998 EEO inquiry,
described above, we find that appellant knew or should have reasonably
suspected discrimination each day his working hours were monitored or
at the latest in February 1998. Since appellant did not contact an EEO
Counselor until April 29, 1998, we find that his EEO Counselor contact
with regard to the alleged discriminatory monitoring which occurred
from July 17, 1997, through March 14, 1998, was untimely and the
alleged discriminatory monitoring which occurred since March 15, 1998,
to the present, was timely. With regard to the untimely portion of the
allegation, appellant failed to present adequate justification for an
extension of the applicable time limit for contacting an EEO Counselor
pursuant to 29 C.F.R. �1614.105(a)(2).
Upon review, it appears that appellant effectively withdrew allegations
c, i, j, k, l, m, n, s, v, w, x, z, bb, ee, gg, and ll from further
EEO processing on July 20, 1998. On appeal, appellant contends that
the withdrawal was based on the condition that the EEO Counselor
would forward the remaining allegations for a complete investigation.
However, the Counselor rebuts appellant's contention by stating that
he told appellant that the remaining allegations would still be sent
for further legal review. Thus, based on the evidence in the record,
we find that appellant's withdrawal was valid.
Accordingly, 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:
October 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations