APPELLANT, v. DARYL L. JONES ACTING SECRETARY, DEPARTMENT OF THE AIR FORCE, AGENCY. Appeal No. 01973587 Agency No. PF1S96001 July 10, 1998 DECISION INTRODUCTION Appellant filed an appeal with this Commission from a final agency decision ("FAD") concerning 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. The final agency decision was dated February 21, 1997. The appeal was postmarked March 29, 1997. The agency has provided no information as to the date the FAD was received by the appellant accordingly, the appeal is presumed timely (see, 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended. ISSUE PRESENTED The issue on appeal is whether the agency properly dismissed appellant's allegations that (a) he was disallowed overtime dated February 16, 1994, and (b) he was issued a notice of abolishment, dated September 24, 1994, as untimely. BACKGROUND Appellant contends that he sought counseling for his complaint concerning the allegation that overtime was distributed in a discriminatory manner in early 1994. On February 23, 1994, he contends that he received his notice of final interview and right to file letter. He alleges that he filed his complaint on March 22, 1994, (the date of the complaint in the record submitted by the appellant) along with a letter addressed to the Chief EEO Counselor, specifying his al-legations in further detail. After an audit of the agency's records, the agency contends that the complaint was never formally filed. The agency concludes that the complaint was resolved during the counseling period, and point to a letter written by the appellant, dated January 25, 1996, in which he stated that "on or about March or April 1994, a complaint of unlawful employment practices was resolved. Subject overtime hours, the agency agreed to pay for said request, as of October 12, 1995, the agency refused to pay... (4) Overtime." Appellant again made contact with an EEO Counselor for a discrimination complaint on September 7, 1995. A formal complaint was filed on January 25, 1996, alleging discrimination based on race (Afro-American), color (black), and physical disability (sleeping disorder) when the agency subjected him to a "pattern and practice...[of] continuous unequal treatment... in employment matters."Appellant also alleged a continuous pattern of discrimination in the form of intimidation, retaliation, and harassment." Appellant mentioned four examples of this treatment in his complaint: (1) his involuntary separation, effective September 30, 1995; (2) the failure of the agency to provide him with safety toe shoes on September 12, 1995; (3) the agency's notice of intent to abolish his position, dated September 28, 1994, which was canceled by the agency on December 7, 1994; and (4) the agency's refusal to pay him for overtime hours, dated February 16, 1994. On February 2, 1996, the agency issued a final agency decision accepting the involuntary separation and safety toe shoe allegation, but dismissing the abolishment of position and overtime allegation for failure to timely contact an EEO Counselor. On appeal the Commission, vacated the February 2, 1996, dismissing the two allegations as untimely and ordered the agency on remand to address and make a specific determination concerning plaintiff's allegation of a continuing violation. On remand, the agency concluded in its February 21, 1997, final agency decision, that the appellant's allegation of a continuing violation failed. The agency found that each incident was a discrete act which should have triggered the appellant's suspicion to file an EEO Complaint, and no commonality between the incidents existed. On appeal, the appellant contends that he properly filed his complaint on the overtime issue on March 22, 1994, rendering it timely. In regards to the allegation of discrimination based on the notice of abolishment, the plaintiff contends that because appellant did not realize that the person retiring from the same position he once held was not a disabled veteran until after his own dismissal, he was not suspicious that he had been discriminated against. According to the employees own affidavit and personnel file, the retired employee is in fact a disabled veteran. Initially the timeliness of the allegations will be addressed separately, and then in the context of a continuing violation theory analysis. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a complaint required by 29 C.F.R. §1614.105(d), (e) or (f). EEOC Regulation 29 C.F.R. §1614.107(b) provides that the agency shall dismiss a complaint or a portion of a com-plaint that fails to comply with the applicable time limits contained in §§1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with §1614.604(c). It is the position of the Commission that the burden is on the complainant to prove that he filed the appropriate document prior to the expiration of the limitations period. See e.g. Hays v. Department of the Air Force, EEOC Appeal No. 01847919 (June 9, 1986). The record in this case indicates that appellant received a notice of the right to file a formal discrimination complaint on February 23, 1994. The notice informed appellant that he had fifteen days from the date of receipt of the notice in which to file a formal complaint. The appellant contends that he filed his complaint March 22, 1994, as indicated by the date on the complaint he has submitted for the record. The agency has no record of receiving a formal complaint from the appellant and contends that the complaint was resolved during the informal counseling period. Absent some evidence that the agency received the complaint (i.e return proof of service), the appellant has failed to meets its burden and accordingly, the dismissal of the allegation as untimely is AFFIRMED. 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 adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. In an attempt to get out from under the limitations period, the appellant contends in his discussion of the notice of intent to abolish his position issue, that because he was unaware that the employee retiring in his department was a non-disabled veteran, he was unaware that he was being discriminated against. However, information provided by the retired employee in his affidavit dated January 12, 1996, as well as copies of the employee's personnel record, make clear that the employee is in fact a disabled veteran, making this argument moot. The Commission will look to what, if anything, complainant has learned between the date of the original incident and the event which first triggers the complainant's suspicion in making a determination as to whether the complainant meets the "reasonable suspicion standard". See e.g. Fowler v. Postmaster General, EEOC Request No. 01952036 (1996). Here, appellant learned that the person that he first suspected was a disabled veteran, in fact was. The Commission fails to see what effect if any this has on the timeliness of the appellant's contact with an EEO Counselor. Given the pattern of discrimination plaintiff has alleged throughout the past four years, the Commission finds that the receipt of the notice of intent to abolish his position should have reasonably triggered his suspicion. Accordingly, the agency's dismissal of the notice of intent to abolish issue was proper and is AFFIRMED. The Commission has held that the time requirements for initiating EEO counseling could be waived as to certain allegations 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 McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal Service, EEOC Appeal No. 01890412 (April 6, 1989). Appellant has alleged a continuation violation in a second attempt to get himself out from under the time limitations of both filing his initial complaint regarding overtime in 1994, and his failure to contact an EEO Counselor in 1994 regarding his concern that he had been discriminated against when he was issued a letter of notice of intent to abolish his position. The formal complaint dated January 12, 1996, from which these two allegations stem from, contained two timely allegations which were accepted for investigation. Namely, appellant's (1) involuntary separation, notice received July of 1995, and becoming effective September 30, 1995; and (2) the failure of the agency to provide him with safety toe shoes on September 12, 1995. 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, 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, appellant 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 appellant. Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978). Without a substantial relationship between the timely and untimely claims, they cannot be viewed as a continuing violation. Sabree v. United Broth. Of Carpenters and Joiners, 921 F.2d 396, at 401 (1st Cir. 1990). 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). Sabree supra.[FN1] In determining whether a personnel actions sounds in permanence, the Commission looks to whether the employee knew or should have known at the time of the alleged discriminatory act that she was being discriminated against. Berry at 981.Events that have a clear conclusion, such as separation, or a notice of abolishment of a position are generally considered isolated incidents not qualifying under the continuing violation theory, even if the events repeatedly occur. See e.g. Robinson v. Department of Commerce, EEOC Request No. 01831212 (1983). Therefore, the Commission finds that the complaint consists of discrete and isolated actions, each with a degree of permanence that preclude appellant from succeeding under a continuing violation theory. In addition each act allegedly perpetrated against the appellant was instigated by a different official and do not contain any commonality in theme to sustain a continuing violation claim. Accordingly, the agency's decision to reject appellant's continuing violation allegation is AFFIRMED. CONCLUSION The Commission finds that the agency's dismissal of the overtime allegation and notice of abolishment issue as untimely was proper, as neither allegations satisfy the time limits either independently or under a continuing violation theory. Accordingly, the agency's dismissal of these allegations is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION 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 WITHINTWENTY (20) CALENDARDAYS 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. § 1614.604(c). RIGHT TO FILE A CIVIL ACTION 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 to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. In the alternative, you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your complaint with the agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL 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: Ronnie Blumenthal Director Office of Federal Operations FN1. This inquiry turns on the facts and context of each particular case. Because we find the selecting official and the "prior knowledge" factor dispositive of the present case, we do not find it necessary to consider the viability of other factors. See Berry v. Board of Supr's of L.S.U., 715 F.2d 971 (1983). The court in Sabree defined this second factor as the permanence factor and considered it to be the most important of those outlined by Berry, at 981.The Commission agrees.