01983260
03-25-1999
Victor E. Vigil Jr., Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Victor E. Vigil Jr. v. Department of the Army
01983260
March 25, 1999
Victor E. Vigil Jr., )
Appellant, )
)
v. ) Appeal No. 01983260
) Agency No. AJAGFO9712H0560
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
The Commission finds that the agency's February 19, 1998 decision
dismissing a portion of appellant's complaint on the grounds of
untimely EEO Counselor contact and failure to bring one allegation to
the attention of the EEO counselor, is proper pursuant to the provisions
of 29 C.F.R. �1614.107(b).
The record shows that appellant sought EEO counseling on August 27, 1997,
alleging that he had been discriminated against on the basis of national
origin (Hispanic) when for a period of two years and continuing up to July
6, 1997, he was denied a promotion to the GS-12 level. On November 25,
1997, appellant filed his formal complaint of discrimination alleging
that he had been discriminated against on the bases of race (Hispanic)
and national origin (Hispanic) when: (1) his promotion to the GS-12 level,
effective July 6, 1997, was delayed for two years; (2) on July 25, 1997,
action was not taken to retroactively promote him to GS-12; and, (3) he
was subjected to reprisal discrimination because he had filed and pursued
previous EEO complaints. The record further shows that since November
1994, appellant had engaged in efforts with his supervisor to have his
position upgraded. Appellant acknowledges that on February 24, 1997,
when he discovered that his supervisor had taken no action "this was
a shock to [him] as [the supervisor] had stated for the last two years
that he would work hard to obtain an upgrade for [appellant's] position".
By letter dated February 18, 1998, the agency accepted allegation (2)
for investigation. On February 19, 1998, the agency issued a final
decision dismissing allegations (1) and (3). Allegation (1)
was dismissed on the grounds of untimely EEO counselor contact.
Allegation (3) was dismissed on the basis that it was not brought to
the attention of the EEO counselor.
On appeal, appellant contends that allegation (1) raises a continuing
violation claim that was not considered by the agency. He further
contends that in his EEO complaint he raised several incidents of
retaliation.
The record shows that since 1995, appellant had asked his supervisor to
upgrade his position to a GS-12. During a period of two years, appellant
waited for his efforts to produce the desired result: a promotion to a
GS-12 position. Moreover, after finding out in February 1997, that his
supervisor had failed to work on his promotion, appellant waited 6 months
before he contacted an EEO counselor. The Commission has specifically
held that an internal efforts or appeals of an agency's adverse action
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 allegation (1) was timely because
it raises a continuing violation. 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 waiting for two years for a promotion and periodically
asking about his request, and specially after being informed by his
supervisor in February 1997, that he had done nothing about the promotion,
appellant is unable to show that he did not have prior knowledge, or at
least reasonable suspicion, that said actions were discriminatory.
Regarding allegation (3), the record shows, as appellant claims, that,
in fact, he did raise several allegations in his formal EEO complaint.
However, said allegations were not brought to the attention of the EEO
counselor during the inquiry of appellant's informal complaint and they
are not like or related to the counseled issues.
Accordingly, the agency's decision dismissing allegations (1) and (3)
was proper and 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:
March 25, 1999
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).