01980149
12-08-1998
Thomas Porta, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Thomas Porta v. Department of Labor
01980149
December 8, 1998
Thomas Porta, )
Appellant, )
)
v. ) Appeal No. 01980149
) Agency No. DCR-7-02-123
Alexis M. Herman, )
Secretary, )
Department of Labor, )
Agency. )
)
DECISION
The Commission finds that the agency's September 4, 1997 decision
dismissing appellant's complaint on the grounds of untimely EEO Counselor
contact is proper pursuant to the provisions of 29 C.F.R. �1614.107(b).
A review of the record shows that on March 4, 1997, appellant was issued
an Official Reprimand. On April 3, 1997, appellant filed a Step 1
grievance alleging that he had been subjected to disciplinary action for
insufficient cause. After appellant's grievance was denied on May 2,
1997, he sought EEO counseling on July 3, 1997, alleging that he had
been discriminated against on the bases of sex (gender), age (none
specified), and reprisal (prior EEO activity) when he was issued an
official reprimand. Appellant further stated that his supervisor had
been treating him differently from his coworkers for "several years",
but refused to provide further information during the inquiry of his
informal complaint. On September 4, 1997, the agency dismissed the
complaint on the grounds of untimely EEO counselor contact.
The record shows that after being issued a reprimand on March 4,
1997, appellant filed a grievance. Only when his grievance was
unsuccessful, did appellant seek EEO counseling, 4 months after the
alleged discriminatory incident. The Commission has specifically held
that an internal appeal of an agency's adverse action and/or the filing
of a grievance do not toll the running of the time limit to contact
an EEO counselor. See Hosford v. Department of Veterans Affairs, EEOC
Request No. 05890038 (June 9, 1989).
Appellant claims on appeal that his complaint was timely because
his supervisor has allegedly been engaged in a continuous pattern
of discrimination against him, and that as late as June 1997, his
supervisor allowed female coworkers to miss deadlines. Appellant is
advised to contact a counselor if he wants to pursue new allegations
of discrimination. In his complaint, appellant did not identify any
specific incidents of discrimination which caused him personal harm
during the 45 day period preceding his counselor contact. It has been
held that in order to establish a claim for a continuing violation, it
must be considered whether the complainant had any prior knowledge or
suspicion of discrimination and the effect of this knowledge.<1> See
Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33,
921 F.2d 396 (1st Cir. 1990). After filing a grievance to protest the
official reprimand, appellant is unable to show that he did not have
prior knowledge, or at least reasonable suspicion, that said action
involving the official reprimand was discriminatory. Accordingly,
the agency's decision dismissing the complaint 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. �l6l4.604(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 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:
December 8, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 "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 has lived
through a series of acts and is thereby able to perceive the overall
discriminatory pattern". Faina v. Secretary of Transportation, EEOC
Appeal No. 01945513 (April 19, 1995).