Willie Minor v. Department of Defense
01983450
February 10, 2000
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. 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 Assistant
1On 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.
