01992269_r
11-05-1999
Walter A. Pokines, Appellant, v. Dan Glickman, Secretary, Department of Agriculture, Agency.
Walter A. Pokines, )
Appellant, )
)
v. ) Appeal No. 01992269
) Agency No. 980543
Dan Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Upon review, we find that three allegations of appellant's complaint were
properly dismissed pursuant to 29 C.F.R. �1614.107(b), on the grounds
that appellant failed to contact an EEO Counselor in a timely manner.
In one allegation, appellant alleged that he was denied the opportunity to
be fairly considered for the State Health Director position. Appellant
stated that the vacancy announcement for this position was canceled on
February 12, 1997, and one of the applicants under the announcement was
given the position through a lateral reassignment. Appellant indicates
that the agency improperly omitted his claim of age discrimination with
regard to this allegation. In another allegation, appellant claimed
that he received a lack of recognition for the duties he performed as
the Acting State Plant Health Director for Ohio from February through
April 1997. Appellant also alleged that he received a Letter of Caution
on June 25, 1997, and another Letter of Caution on March 25, 1998.
The allegations accepted for investigation were that appellant was
subjected to a hostile work environment on the basis of reprisal from
April 1997 to March 25, 1998 when:
1. The agency failed to pursue appellant's concerns about the July 17,
1996 physical assault against him, and appellant was admonished on March
25, 1998, for sending a letter to the Air Force Base Commander regarding
the incident.
2. Appellant was ordered to attend a January 13, 1998 meeting at the
Air Force Base.
3. Appellant was not consulted on the selection of new computer
equipment.
4. Management failed to respond to appellant's grievance on back pay
in June 1997, yet it responded to grievances filed by other employees.
5. Appellant was �hassled� on suggested changes he made to his Fiscal
Year 1997 performance plan.
6. Management proposed changing the hours of operation at the Dayton,
Ohio work unit, and reducing appellant's overtime on October 20, 1997.
Appellant did not initiate contact with an EEO Counselor until January
8, 1998. Although appellant alleges that the accepted allegations and
the dismissed allegations reflect a continuing violation of a hostile work
environment, we find that these incidents do not satisfy the criteria of
a continuing violation. With regard to the cancellation of the vacancy
announcement and the Letter of Caution issued on June 25, 1997, we find
that these were discrete events with a degree of permanence that should
have triggered appellant's suspicion of discrimination and hence his
duty to contact an EEO Counselor.<1> See Anvari v. Department of Health
and Human Services, EEOC Request No. 05930157 (June 17, 1993). Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
With respect to the alleged lack of recognition that appellant received
for the duties he performed as the Acting State Plant Health Director,
we find that this allegation does not bear a sufficient nexus to any of
the accepted allegations, and that appellant should have first suspected
discrimination shortly after his tenure as Acting State Plant Health
Director was completed rather than nine months after his tenure ended.
We find that appellant failed to contact an EEO Counselor with
regard to these allegations within the 45-day limitation period.
Appellant failed to act with due diligence or prudent regard for
his rights. O'Dell v. Department of Health and Human Services, EEOC
Request No. 05901130 (December 27, 1990); Baldwin County Welcome Center
v. Brown, 466 U.S. 147, 151 (1984) (per curiam). We find that appellant
failed to submit adequate justification for an extension of the 45-day
limitation period. Accordingly, the final agency decision dismissing the
aforementioned allegations of appellant's complaint is hereby 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:
November 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 The agency indicated in its final
decision that its grounds for dismissal of the allegation concerning
the Letter of Caution issued on March 25, 1998, was that appellant
sought redress through the grievance process. Appellant no longer
contests the agency's decision to dismiss the allegation concerning
the Letter of Caution issued on March 25, 1998. Appellant states
on appeal that this Letter of Caution was removed from his records
as a result of a grievance. Accordingly, we will not address the
propriety of the agency's dismissal of the allegation concerning
the Letter of Caution of March 25, 1998,further herein.