Complainant contends that he
was unequivocally informed of the restriction on his use of
vacation time on March 18, 1988, and challenges the restriction
noted on his leave request of March 23, 1988.
Complainant filed an amended complaint on May 5, 1988,
reiterating his general allegations concerning restricted use of
vacation time, and alleging additional retaliatory acts of
harassment by his immediate electrical supervisor, Mr. McGuire,
after the filing of his original complaint. Complainant
specifically asserts that on May 2, 1988, Mr. McGuire (1)
threatened him with termination if he was caught dealing with his
union or other outside agencies on the city's time; (2) told
Complainant he could no longer use his lunch and coffee breaks to
run personal errands; and (3) after denying a request for a
half-day of vacation leave to teach, assigned Complainant to clean a
truck for a full day. Complainant also alleges that Respondent's
repeated inquiries to Pcc commencing in January, 1988, caused him
to lose his teaching position.
ALJ'S RECOMMENDED DECISION
Respondent moved to dismiss the complaints as untimely, and
a hearing limited to that motion was held on December 7, 1988.
The ALJ admitted documentary evidence and oral testimony, heard
the parties' arguments on the timeliness issues an requested
post-hearing briefs on the motion.
The ALJ recommended that the April 8 complaint be dismissed
as untimely, finding that Complainant was notified of
Respondent's decision to prohibit his use of vacation time for
teaching by the written memorandum of March 3, 1988, and that the
March 18 memorandum and March 23 condition on use of vacation
leave were not continuing violations. The ALJ declined to make a
finding on the timeliness of the May 5 amended complaint, or on
the applicability of the continuing violation theory to the May 2
events.
DISCUSSION
Under the pertinent provisions of the SWDA and the WPCA and
the implementing regulations at 29 C.F.R. § 24.3(b), a
complainant is required to file any complaint within thirty days
after the occurrence of the alleged violation. 33 U.S.C.
§ 1367(b); 42 U.S.C. § 6971(b). Complainant challenges the ALJ's
determination that March 3, 1988, is the date of the triggering
violation which commenced the thirty day filing period, with
respect to the allegation raised in the complaint of April 8,
1988. Complainant asserts that he did not receive "final and
unequivocal" notice of the restriction on his use of vacation
time until the memorandum of March 18, 1988, and consequently,
contends that the April 8 complaint was filed within the
requisite thirty days. Alternatively, Complainant argues that
even if the filing period commenced to run with the March 3
memorandum, the continued policy of restricting use of vacation
time is ongoing and constitutes a continuing violation.
Complaint argues that under either theory the complaint of
April 8 should be deemed timely filed.
I consider Complainant's arguments in light of the
applicable case law and the prior decisions of the Secretary.
See generally Delaware State College v. Ricks , 449 U.S. 250,
258-261 (1980); English v. General Electric Company , Case No.
85-ERA-2. Dep. Sec. Final Dec. and Order, Jan. 13, 1987
(hereafter English ), slip op. at 4-11, aff'd sub nom. English v.
Whitefield , 858 F.2d 957 (4th Cir. 1988); Garn v. Benchmark
Technologies , Case No. 88-ERA-21, Sec. Order of Dec. and Remand,
Sept. 25, 1990, slip op. at 6; Nunn v. Duke Power Company , Case
No. 84-ERA-27, Dep. Sec. Dec. and Order of Remand, July 30, 1987,
slip op. at 13-17.
The Secretary has held that the 30 day filing period begins
running on the date that the employee is informed of the
challenged employment decision, rather than at the time the
effects of the decision are ultimately felt. See Nunn , at 14-17.
In Ricks , the Court concluded that, "the alleged discrimination
occurred--and the filing limitations period therefore commenced--
at the time the tenure decision was made and communicated to" the
complainant. 449 U.S. at 258. The decision restricting
Complainant's use of vacation time for teaching was made and
communicated to Complainant by the written notification provided
on March 3, 1988. Contrary to Complainant's assertions, the
March 18 memorandum was a reiteration of what previously had been
communicated to Complainant on March 3. The evidence of
Complainant's immediate discussion with the union about the
March 3 notification, and his challenging the action by filing a
grievance between March 4 and March 8, further support this
conclusion. See McGarvey v. EG & G Idaho, Inc. , Case No.
87-ERA-31, Sec. Final Dec. and Order, Sept. 10, 1990, slip op. at
2-4. As the court found in English v. Whitfield , "[t]he notice
of the challenged employment decision itself was in form final
and unequivocal. There was no information in it that the
decision was subject to further appeal, review, or revocation,
either in whole or in part." 858 F.2d at 962. Accordingly, I
conclude that the thirty day filing period commenced to run on
March 3, 1988, with respect to the restriction on use of vacation
time, and that this complaint was therefore untimely and must be
dismissed.
Complainant contends alternatively that the timeliness of
his claim may be preserved under the "continuing violation"
theory, alleging a course of related discriminatory conduct and,
consequently, that the filing of his complaint was within thirty
days of the last discriminatory act. See Engenrieder v.
Metropolitan Edison Company , Case No. 85-ERA-23, Sec. Order of
Remand, Apr. 20, 1987, slip op. at 3-8. Contrary to
Complainant's assertions, the facts here do not establish a
continuing violation, and that theory cannot be applied to
preserve the timeliness of the April 8 complaint. Neither the
March 18 memorandum, nor the March 23 restriction on
Complainant's vacation leave request for March 30, constitute
additional allegations of discriminatory acts, such as required
for a continuing violation. See Lorance v. AT&T Technologies,
Inc. , 490 U.S. 900, 906 & n.3 (1989); Ricks , 449 U.S. at 257-260.
The second memorandum was a restatement by Respondent of its
March 3 decision to restrict Complainant's use of vacation time,
and the conditional and restricted approval of complainant's
vacation leave request on March 23 was simply the first time this
vacation restriction was applied. The March 23 restriction was a
consequence of the alleged discriminatory act of restricting use
of vacation time and was not a separate violation. See Garn at
6-11. Accordingly, I reject the argument that the complaint of
April 8, 1988, was timely under a continuing violation theory.
I disagree with the ALJ's conclusion that there is
insufficient evidence for a timeliness determination concerning
the May 5 amended complaint. Although the amended complaint
reiterates the allegations of restricted vacation leave, it also
raises additional allegations of discriminatory acts of
harrassment against Complaint in retaliation for protected
conduct, i.e. , the truck cleaning assignment and the alleged
firing threat by Mr. McGuire on May 2. Respondent concedes that
if the alleged May 2 incidents are considered separate acts of
discrimination rather than part of a continuing violation, then
the May 5 amended complaint was timely. To the extent that the
amended complaint reiterates the allegation of discriminatory
restriction on use of vacation time this allegation is time
barred as discussed above. Based on the record before me,
however, I conclude that the amended complaint raises new
allegations of discriminatory acts, separate from the March 3
notice of leave restriction, and that it was timely filed with
respect to these alleged incidents on May 2, 1988.
Accordingly, I dismiss the complaint of April 8, 1988, but
remand this case for further consideration of the merits of the
timely allegations raised in the amended complaint of May 5,
1988.4
SO ORDERED.
LYNN MARTIN
Washington, D.C.
[ENDNOTES]
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