Pudwill's supervisor, stated that Jenkins was to be suspended for three working days because he was absent without explanation on January 5, 1988, and was seen teaching while on sick leave on January 6. (C-1; see R-12) In a letter to Gardiner of January 19, 1988, Gerald Bruce, the business manager of Jenkins' union, protested Jenkins' suspension. (C-2) On February 5, 1988, Gardiner reduced the suspension to one day, based only on the teaching on January 6. (C-3) On February 15, 1988, Bruce again protested the suspension. (C-4) On February 15 and 16, Portland Community College wrote two letters stating that Jenkins did not in fact teach his class on January 6. (C-4A, C-5A) In a letter of February 16, 1988, Jenkins' doctor verified his illness in early January. (C-5) By letter dated March 18, 1988, Gardiner removed from all files his letters of January 6 and February 5, but placed Jenkins on sick leave probation on the basis of his teaching on January 6. (C-9)

    Pudwill testified that on March 2, 1988,

Well, I talked to Terry that day. We were discussing his continually taking the Wednesday afternoon off for teaching, and I told him then that, you know, it was interfering with our work load and that I couldn't continue to have him taking that off or guaranteeing that I could give him that day off every Wednesday.

(Tr. 50). Pudwill said he told Jenkins he could finish teaching the ongoing term, which ended on March 18, 1988. (Tr. 52).

    On March 3, 1988, Gardiner wrote a memorandum to Jenkins. (C-6) According to Gardiner, Jenkins received the memorandum on either March 3 or March 4, 1988. (Tr. 42.) The memorandum states:

This is to inform you that effective March 19, 1988, the practice of teaching during the Park Bureau's normal working hours must cease.

Considering our current backlog of work and your value as an employee, we cannot afford to have you missing work with such regularity.

Hopefully, you can adjust your teaching schedule so that you only teach at times that don't conflict with your job at the Park Bureau. If you

feel you can't adjust your teaching in such a manner, you may want to consider an unpaid leave of absence. If so, please feel free to discuss it with me.

When asked at the hearing, "Was this memo intended to be a final policy decision on your part that Terry Jenkins would no longer be allowed to teach?", Gardiner replied, "No, ma'am. No, huh-uh." (Tr. 40) He explained, "All I wanted him to do was to try to adjust his schedule so that he wouldn't teach during our working hours on a regular schedule." (Tr. 41) He further explained that he did not know of any similar situations with any other employees. (Tr. 42) However, he never answered the question whether he considered the memorandum a communication of a final policy decision.

    Jenkins testified that on March 2 or 3, he had a conversation with Pudwill: "He told me that Jim Gardiner had informed him that I could no longer teach during working hours, and at the same time he told me that, he gave me this particular letter from Jim." Jenkins was referring to Exhibit C-6, the memorandum of March 3, 1988. Jenkins said Pudwill himself did not state any particular date when he would have to stop using vacation leave to teach. (Tr. 58-59) However, Jenkins' testimony indicated that on the basis of Pudwill's statements and C-6, he understood he would no longer be allowed to use the Wednesday afternoons for teaching as of March 19, 1988. Jenkins testified about the difficulties that time limit caused him. He was particularly concerned that another teacher would not be able to take over the afternoon classes in his course, which was to continue into the next two terms. (Tr. 60-64)

    On March 8, 1988, Gerald Bruce, the business manager of Jenkins' union, wrote a letter to Gardiner. (C-7) Bruce referred to the memorandum of March 3, 1988, (C-6) and he requested that Gardiner allow Jenkins to finish teaching his present course before implementing the new policy regarding Jenkins' vacation time. Jenkins testified that between March 4 and March 8, 1988, he showed Exhibit C-6 to Bruce. He then prepared a written grievance (C-6A) and delivered it to Bruce. (Tr. 63-64) Bruce apparently then wrote his letter to Gardiner. In the written grievance, Jenkins stated that on March 4, 1988, the following occurred: "Refusal to allow me vacation time in accordance with the contract and current practices thereby discriminating against me for filing a workman's comp. claim, asserting Civil Rights claims, filing a stress claim and filing safety complaint charges." He stated that on the same day,

he reported this problem to McGuire, whose "reply was: 'I talked to Gardiner and told him that he is going to have to change the policy around the yard since everyone else is given time off when the[y] want it and that he is singl[ ling you out.'" (C-6A; R-10)

    Regarding the exact timing of the above events, there is little doubt that Gardiner wrote C-6 on March 3, 1988. Jenkins received C-6 on either March 3 or 4. The conversation between Jenkins and Pudwill took place on March 2, 3, or 4. Jenkins communicated twice with Bruce between March 4 and 8, and Bruce wrote C-7 on March 8.

    On March 18, 1988, Pudwill wrote a memorandum to Jenkins. (C-8) The memorandum states:

As per our conversation on March 2, 1988, I stated that we had too much work for the electrician to have you teaching at Portland Community College.

Referring to Jim Gardiner's letter of March 3, 1988, you will not be granted permission to use vacation hours to teach any longer. Article 17.2.1 states, "With reasonable advance notice and with the consent of the Employer, employees shall be permitted a day off without pay; provided, however, that no day off shall be granted for other outside employment."

Therefore, I am restating that effective March 18, 1988, the practice of teaching during normal working hours must cease.

Hopefully, you can adjust your teaching schedule so that you only teach at times that don't conflict with your job at the Park Bureau.

    The record also contains a memorandum from Jenkins to Pudwill dated March 18, 1988. In the memorandum, Jenkins stated in part that he was confused as to the policy applicable to his vacation leave requests: "Am I on 'Vacation Probation' or am I going to [be] granted vacation time when I wish to take it? Do I have special rules to get time off, just what am I going to have to do in order to use my vacation time? Please fo[r]ward me a copy of these rules so that I can better cooperate with your desires." (C-10)

    On March 23, 1988, Jenkins submitted a written request for vacation leave from 11:30 to 3:30 on March 30, 1988. Pudwill approved the request, but added the note: "Not for outside employment." (C-10A)

Pleadings:

    The complaint states: "Mr. Jenkins hereby protests the discriminatory conduct of his employer, the Portland Bureau of Parks and Recreation, in restricting the activities which he could pursue on his personal vacation time. Mr. Jenkins believes and alleges that this unfair restriction was in retaliation for [various whistleblowing acts]." The complaint specifically refers to Pudwill's memorandum of March 18, 1988, (C-8) and to the vacation leave request of March 23, 1988 (C-10A). The complaint does also refer to various earlier events, including the dispute about sick leave in January 1988. However, that discussion is part of a section entitled, "Background". Neither of the attorneys' briefs addressed the contention that the earlier events constituted a continuing pattern of discrimination regarding any type of leave time. As an adjudicator, I cannot make the parties' arguments for them and thereby interpret the "Background" section of the complaint as contending a pattern of continuing violations beginning in January 1988.

    The amended complaint states: "Since filing [thel complaint, Mr. Jenkins has been subjected to additional discriminatory treatment by his employer . . .. As a result of this ongoing harassment, Mr. Jenkins hereby amends the underlying basis for his complaint and his request for damages." The amended complaint refers to various restrictions imposed by McGuire on May 2, 1988, and it restates that basis for the complaint.

    The City of Portland bases its motion to dismiss on the following regulation: "Any complaint shall be filed within 30 days after the occurrence of the alleged violation . . . . " (29 C.F.R. § 24.3(b); 33 U.S.C. § 1367(b); 42 U.S.C. § 6971(b).) The City contends that the relevant "violation" is the memorandum of March 3, 1988, (C-6) which Jenkins received either on March 3 or on March 4, more than 30 days prior to his filing of the complaint on April 8, 1988. Jenkins contends either that the relevant violation is the memorandum of March 18, 1988, (C-8) or that certain events

constitute a continuing violation.

Single Violation Theory:

    I will first decide whether, assuming this is not a case of continuing violation, the relevant violation is C-6 or C-8. It is well established that the relevant violation must be a final and unequivocal act. (Delaware State College v. Ricks, 449 U.S. 250 (1980); English v. Whitfield, 858 F.2d 957 (4th Cir. 1988); Janikowski v. Bendix Corp., 823 F.2d 945 (6th Cir. 1987); Kessler v. Board of Regents, 738 F.2d 751 (6th Cir. 1984).) In English v. Whitfield, the employer assigned English to a temporary position and gave her notice that it would lay her off in approximately two months if no suitable alternative permanent position had then been found. The Fourth Circuit found that, despite the possibility of avoiding layoff, the notice "was in form final and unequivocal", and that there was no indication that the employer's decision "was subject to further appeal, review, or revocation". The court therefore calculated the filing deadline from the time English received the notice, rather than from the time of her layoff two months later.

    Jenkins contends that, unlike the layoff in English v. Whitfield, the memorandum of March 3, 1988, (C-6) was not sufficiently final and unequivocal notice of the restriction on the use of his vacation time. He points out that in the memorandum, Gardiner suggested an unpaid leave of absence, which was actually contrary to the applicable labor agreement. Jenkins also argues that various people were confused about the intent and effect of C-6, even as of the time of hearing. Specifically, Pudwill testified that around March 2 to 4, he told Jenkins that he could no longer "guarantee" vacation time to teach every Wednesday. However, in C-6 Gardiner more restrictively stated: "the practice of teaching during the Park Bureau's normal working hours must cease." Also, unlike the memorandum of March 18, 1988, (C-8) C-6 does not specifically mention vacation time, but Jenkins' grievance and Bruce's letter of March 8 indicate that Jenkins understood it to cover such time.

    In my opinion, C-6 is sufficiently final and unequivocal within the meaning of Delaware State College v. Ricks and English v. Whitfield, supra. The City of Portland points out that, like the possibility of another job for English, Gardiner's mention of an unpaid leave of absence is best characterized as a possible means to ameliorate the effect of the decision regarding use of vacation

time. Further, the language of C-6 is clear: "effective March 19, 1988, the practice of teaching during the park Bureau's normal working hours must cease." At the hearing, Jenkins' testimony indicated that on the basis of Pudwill's statements and C-6, he understood that as of March 19, 1988, he would definitely no longer be allowed to use vacation leave for teaching on Wednesday afternoons (Tr. 60-64):

Q You felt this [C-6] was going to affect your teaching right off the bat. Is that it?

A Pretty much, but they put an effective date on it as of the 19th.

Q Okay. so did you consider this as something where you had to make arrangements with the school as promptly as possible so as to -- or figure some way to be able to take the time off?

A It was kind of putting me in a pickle, because there was --

Q In other words, you had to think of something --

A Right.

Q --right quick. . . .

It is unlikely that Jenkins would have felt the need to act "right quick" if C-6 were ambiguous or tentative. In my opinion, neither Pudwill and Gardiner's slightly different wording nor the lack of the words "vacation leave" in C-6 created any real uncertainty as to the meaning or final effect of C-6. Further, I consider Pudwill's memorandum of March 18, 1988, (C-8) merely a restatement of the final decision first memorialized in C-6.

Finding No. 1: I find that, assuming there is no continuing violation, the relevant violation occurred when Jenkins received the memorandum of March 3 (C-6), at the latest on March 4, 1988.

>

Continuing Violation Theory:

    Various courts have held that, in determining when a violation occurred, the proper focus is on the time of the discriminatory act, rather than on the time when the complainant felt the painful consequences of that act. (Delaware State College v. Ricks, 449 U.S. 250 (1980); Chardon v. Fernandez, 454 U.S. 6 (1981).) In Delaware State College v. Ricks, the college denied tenure to Ricks, then awarded a contract for one additional year of employment. The Court held that the time for filing a complaint under Title VII ran from the decision to deny tenure, not from the expiration of the one additional year of employment. The Court found that the termination of employment after the one additional year was merely a delayed effect of the decision to deny tenure. In other words, the final discriminatory act was the decision to deny tenure. Thus, a single violation is a final and unequivocal act, such as a decision to terminate an employee, which may have continuing effects. In contrast, a continuing violation is defined as a employment policy or practice which is repeatedly implemented, or as a series of related acts affecting certain employees. (English v. Whitfield, 858 F.2d 957 (4th Cir, 1988); Bruno v. Western Electric Company, 829 F.2d 957 (10th Cir. 1987); Janikowski v. Bendix Corp., 823 F.2d 945 (6th Cir. 1987); Scott v. Pacific Maritime Association, 695 F.2d 1199 (9th Cir. 1983).) I must decide whether the present case involves a single act with continuing effects, or a series of related acts; whether the facts of this case are more similar to a single decision to terminate an employee, or to the continuing series of efforts to force the complainant to retire in Bruno v. Western Electric Company, supra.

    Jenkins argues that this is a case of continuing violation. According to Jenkins, in Pudwill's memorandum of March 18, 1988, (C-8) the City of Portland gave notice of the policy that it would no longer allow Jenkins to use vacation leave to teach on Wednesday afternoons. The City then implemented the policy, and the second part of the continuing violation occurred, when Pudwill conditionally approved Jenkins' application for vacation leave for March 30, 1988. However, Jenkins has made no argument made to tie in the events concerning sick leave in January 1988.

    The City argues that the memoranda of March 3 and March 18 and the conditional leave approval for march 30 do not constitute a continuing violation. The City contends that the conditional approval of the leave application was merely the first time Jenkins felt the painful effects of its decision to prohibit the use of vacation time for teaching. According to the City, that decision is

the only relevant violation. I am persuaded by the City's argument.

Finding No. 2: Considering only the memorandum of March 4, the memorandum of March 18, and the conditional leave approval of March 23, I find that no continuing violation has been shown. I view Pudwill's conditional approval of the leave application as a consequence of the City's decision of March 4, 1988, regarding use of vacation time for teaching. Under Delaware State College v. Ricks and Chardon v. Fernandez, a consequence of an action cannot be considered a violation for purposes of timely filing. Therefore, I am compelled to find that the decision of March 4, 1988, was the relevant violation, and that the complaint of April 8, 1988, was not timely filed.

Amended Complaint:

    As discussed above, despite counsel's statements at the hearing (Tr. 28), I consider the amended complaint both an amendment regarding damages and an amendment of the underlying basis for the complaint. Specifically, the amended complaint is based both on the City of Portland's actions regarding vacation leave in March 1988 and on McGuire's actions of May 2, 1988. In its brief, citing English v. Whitfield, 858 F.2d 957 (4th Cir. 1988), the City concedes that if the events of May 2, 1988, "are viewed as separate retaliatory acts of discrimination then the Amended Complaint is timely under 29 C.F.R. Part 24.3(b), as it was filed on May 8, 1988 within thirty days of those incidents, but only as to those acts."

    Complainant's counsel contends that the incident of May 2 was part of a continuing violation. However, in my view, the evidence is insufficient at this time to make a finding on whether the incident of May 2, 1988, was a separate act of discrimination or part of a pattern of continuing violation. If it was a separate act, then the City concedes the timeliness of the amended complaint as to that incident. If, on the other hand, the incident of May 2, 1988, was part of a continuing violation, possibly beginning in January 1988, then the complaint and amended complaint may be timely as to all events discussed in the Summary of Evidence, above. I make no finding as to the timeliness of the amended complaint.

    I conclude that Complainant filed untimely, and I recommend granting the motion to dismiss.

       ROBERT J. BRISSENDEN
       Administrative Law Judge

Dated: JAN 31 1989
San Francisco, California

RJB/er