Willie Minor, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01983450 (E.E.O.C. Feb. 10, 2000)

01983450

02-10-2000

Willie Minor, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Willie Minor, )

Complainant, )

)

v. ) Appeal No. 01983450

William S. Cohen, ) Agency No. XL98010

Secretary, )

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

____________________________________)

DECISION

On March 26, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on February 28, 1998,

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> Volume 64 Fed. Reg. 37, 644, 37, 656 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.107(b))

provides that where an agency decides that some but not all of the

claims in a complaint should be dismissed, the agency shall notify

the complainant of its determination; however this determination is not

appealable until final action is taken on the remainder of the complaint.

The Commission previously inquired of the parties the status of the

remainder of the complaint at issue. Based on responses, it appears that

the remainder was the subject of a final agency decision on December 17,

1998, rendering those claims pending herein the only remaining viable

matters and ripe for review on appeal.

In his complaint, complainant alleged that he was subjected to a hostile

work environment on the bases of race (African-American) and color

(black) when:

In 1994, government co-worker A gave complainant a copy of a document

entitled �-IGGER APPLICATION FOR EMPLOYMENT�, which had been found on

a desk in the government's on-site office at DCMC PEMCO AEROPLEX;

On or about April 24, 1996, complainant became aware that a crate

inscribed with the letters �KKK� was found in the crating area of the

PEMCO AERROPLEX Facility;

On January 20, 1997, Martin Luther King's birthday anniversary,

complainant was confronted by PEMCO AEROPLEX Employee B and required

to remove his vehicle from a space designated for visitors while others

were not required to move their cars;

Hangman's nooses were found in non-government areas of a facility owned

by PEMCO AEROPLEX (a Defense Contractor) on August 1, 1997, August 19,

1997, and October 16, 1997;

On August 27, 1997, three PEMCO contractor employees showed complainant

where some lettering on certain steps in PEMCO AEROPLEX's facility

had been painted over, and complainant was informed that in May 1997

it had been allegedly noticed that the first �r' in the word �rigger'

had been changed to an �n';

On September 29, 1997, complainant was informed by a PEMCO AEROPLEX

contractor employee that he was not allowed to enter the station number

10 area at PEMCO AEROPLEX; and

On October 2, 1997, complainant was informed by a government employee

that PEMCO AEROPLEX contractor employee A had made statements about

how he had attempted to provoke complainant into verbally or physically

abusing him.

The agency dismissed issues (1), (2), and (3) for untimely EEO Counselor

contact. In its final agency decision, the agency examined all of

complainant's allegations under a continuing violation theory. The agency

decided that issues (1), (2), and (3) did not satisfy the criteria for

establishing a continuing violation. Specifically, the agency found

that following the incidents in issues (1) and (2), complainant should

have had a reasonable suspicion of discrimination and thus, should have

contacted an EEO Counselor at this time. The agency also stated that

issue (3) was separate and distinct from the other allegations and not

recurring in nature. In addition, the agency dismissed issue (5) on the

grounds that complainant failed to state a claim. The agency found that

complainant did not prove that he suffered a personal loss or harm with

respect to a term, condition, or privilege of employment. The agency

argued that since the offensive material had been painted over at the

time complainant was first shown the area, he did not actually witness the

offensive material and thus could not be granted relief on this issue.

On appeal, complainant states that his complaint shows a pattern of

discrimination by the agency and its employees. Complainant claims that

he is being punished for not filing a separate EEO complaint for each act

of discrimination. In addition, complainant states that if he had filed

individual EEO complainants, they would have been dismissed as frivolous.

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 held that the time requirements for initiating EEO

counseling could be waived as to certain claims within a complaint when

the complainant alleged 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 Reid v. Department of Commerce,

EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States

Postal Service, EEOC Request No. 05901150 (December 28, 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 of Louisiana State Univ.,

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, complainant 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 complainant.

Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).

Relevant to the determination are whether the acts were recurring or were

more in the nature of isolated employment decisions; whether an untimely

discrete act had the degree of permanence which should have triggered an

employee's awareness and duty to assert his or her rights; and whether the

same agency officials were involved. Woljan v. Environmental Protection

Agency, EEOC Request No. 05950361 (October 5, 1995).

With regard to issues (1), (2), and (3) we find that complainant did not

contact an EEO Counselor regarding these matters until September 19, 1997,

which was beyond the forty-five day time limit set by the regulations.

Upon review of the record, we find that complainant failed to establish a

continuing violation. The Commission finds that issues (1), (2), and (3)

which involve the circulation of a discriminatory employment application,

the presence of a crate inscribed with discriminatory writing, and

a request for complainant to move his car are discrete and separate

actions which were not interrelated to complainant's timely allegation

(5). Furthermore, we note that these incidents occurred more than two

years apart from each other. Thus, we find that complainant should have

reasonably suspected the discrimination at the time of the incidents

described in allegations (1), (2), and (3).

With regard to issue (5), we find that complainant failed to state

a claim. Complainant alleges that he was subjected to a hostile work

environment when he was shown where some lettering had been painted over,

which allegedly contained racially offensive material.

In the present case, we find that the only remaining issue is issue

(5) and this alleged instance is not sufficiently severe or pervasive

to constitute a hostile work environment. See Phillips v. Department

of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks

v. Health and Human Services, EEOC Request No. 05940481 (February 16,

1995). In addition, the alleged writing had been painted over at the

time complainant learned of its existence. Thus, we find that complainant

failed to state a claim.

Accordingly, the agency properly dismissed issues (1), (2), and (3)

for untimely EEO Counselor contact and properly dismissed issue (5)

for failure to state a claim. Thus, the Commission AFFIRMS the agency's

final decision.

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 10, 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.