01982122_r
04-16-1999
Agnes Green, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Agnes Green, )
Appellant, )
)
v. ) Appeal No. 01982122
) Agency No. 98-3016
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her 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. Appellant received the final agency decision
on December 30, 1997. The appeal was postmarked January 23, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The first issue presented is whether the agency properly dismissed
allegations 3-7 of appellant's complaint on the grounds that appellant
failed to contact an EEO Counselor in a timely manner.
The second issue presented is whether the agency properly dismissed
allegations 1-8 of appellant's complaint on the grounds that appellant
elected to proceed under the negotiated grievance procedure.
The third issue presented is whether the agency properly dismissed
allegations 2-9 of appellant's complaint on the grounds of mootness.
BACKGROUND
Appellant initiated contact with an EEO Counselor on July 21, 1997. In a
formal EEO complaint dated October 21, 1997, appellant alleged that she
had been discriminated against on the bases of her race (African-American)
and in reprisal for her previous EEO activity when:
Since April 1996, she has been denied career development opportunities.
In or about June 1997, her phone log was seized.
She was denied a detail.
In or about June 1996, she was not given proper priority placement
consideration following a determination that if a reduction-in-force
were to occur, her position might be eliminated.
In or about August 1996, she was assigned to demeaning duties.
Since April 1996, the agency has displayed an unwillingness to settle
her dispute.
In or about July 1996, she was not permitted to view documents contained
in a drop folder.
In or about June 1997, she was denied the opportunity to have the union
representative of her choice.
In or about October 1997, the agency defamed her character and
demonstrated a willful intent to publicly embarrass/humiliate.
By letter dated November 19, 1997, the agency requested that appellant
set forth any reasons for extending the 45-day limitation period for
contacting an EEO Counselor. The agency also requested that appellant
provide the missing dates where the complaint did not specify when the
relevant actions occurred. Finally, the agency requested that appellant
explain the damages she suffered, and that she provide objective evidence
of any such damages claimed and the causal relationship between the
alleged acts of discrimination and the damages claimed.
In a response dated December 3, 1997, appellant explained that the
incident set forth in allegation 3 began in April 1996. With regard
to the damages that she allegedly suffered, appellant stated that she
has incurred lost wages and other pecuniary damages, medical bills,
and pain and suffering as a result of the alleged discrimination.
In its final decision, the agency dismissed allegations 3-7 of appellant's
complaint on the grounds of failure to contact an EEO Counselor in a
timely manner. The agency determined that appellant's EEO contact on
July 21, 1997, with regard to these allegations was after the expiration
of the 45-day limitation period. The agency further determined that
appellant failed to provide adequate justification for extending the
time limits. The agency dismissed allegations 1-8 on the grounds that
appellant elected to proceed through the negotiated grievance procedure.
According to the agency, appellant filed numerous grievances concerning
many of the alleged acts of discrimination described in her complaint.
The agency noted that appellant filed grievances on June 5 and 16, 1996,
August 6, 1996, October 23, 1996, November 6, 1996, and July 9, 1997.
The agency stated that the collective bargaining agreement permits
allegations of discrimination to be grieved. The agency also dismissed
allegations 2-9 on the grounds of mootness. According to the agency, it
can be said with reasonable certainty that the actions set forth in these
allegations are not likely to recur in light of the fact that appellant
was removed from her position on October 15, 1997. The agency noted that
although appellant was requested to provide evidence of pecuniary damages
and compensatory damages, she has not submitted objective evidence of
such damages, nor of the causal relationship between the acts of alleged
discrimination and the damages she claims. Thereafter, appellant filed
the instant appeal.
In response, the agency asserts that the incidents raised in allegations
3-7 all occurred more than 45 days before appellant's contact with
an EEO Counselor. The agency notes that appellant was afforded the
opportunity to set forth any reasons to justify an extension of the
time frame, but she did not do so. With regard to the allegations that
were dismissed on the grounds that appellant elected to proceed under
the negotiated grievance procedure, the agency asserts that the claims
made in the grievances derive from the same incidents as that set forth
in the instant complaint. According to the agency, the dates of the
alleged discriminatory incidents and the dates of the filed grievances
are generally contemporaneous. The agency asserts it is reasonable to
conclude that EEO complaints filed at the same time as the grievances,
which contain the same general language, cover the same incidents.
The agency notes that appellant was afforded the opportunity to
clarify her allegations and be more specific, but she failed to do so.
With respect to allegation 9, the agency asserts that appellant failed to
establish that the alleged incident caused her to suffer a loss affecting
a term, condition, or privilege of her employment. The agency states
that it distributed appellant's picture after her removal to alert the
proper authorities that appellant no longer belonged in the building.
The agency maintains that appellant was not affected with regard to a
condition or term of her employment since she was no longer an employee
at the time and had no right to be in the building.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.301(a) provides in relevant part that
when a person is employed by an agency subject to 5 U.S.C. �7121(d) and
is covered by a collective bargaining agreement that permits allegations
of discrimination to be raised in a negotiated grievance procedure, a
person wishing to file a complaint or a grievance on a matter of alleged
employment discrimination must elect to raise the matter under either
part 1614 or the negotiated grievance procedure, but not both.
A review of the record reveals that the only complaint allegation that
clearly was raised in a grievance was allegation 7. On August 6, 1996,
appellant filed a grievance concerning her manager's refusal to allow
her to review her drop file. We find that appellant elected to proceed
through the negotiated grievance procedure with regard to this allegation.
Accordingly, the agency's dismissal of allegation 7 was proper and
is AFFIRMED.<1>
As for the remaining allegations dismissed pursuant to 29
C.F.R. �1614.301(a), we find that the record does not support the agency's
determination that appellant elected to raise these issues through the
grievance process. The grievances are not clearly related to allegations
1-6 and 8. Accordingly, the agency's dismissal of allegations 1-6 and
8 on these grounds was improper and is REVERSED.
EEOC Regulation 29 C.F.R. �1614.107(e) further states that the agency
shall dismiss a complaint that is moot. In County of Los Angeles
v. Davis, 440 U.S. 625 (1979), the Supreme Court held that where the
only matter to be resolved is the underlying issue of discrimination,
a case can be closed if:
(1) it can be said with assurance that there is no reasonable
expectation that the violation will recur; and
(2) interim relief or events have completely eradicated the
effects of the alleged violation.
Upon review, we find that allegations 2-6 and 8-9 of appellant's
complaint are not moot. Although the record indicates that appellant was
removed from her position with the agency, this does not completely and
irrevocably eradicate the effects of the alleged violation. Appellant
claimed that she suffered lost wages and other pecuniary damages as a
result of the alleged discrimination. Further, appellant states that
the discrimination caused her pain and suffering, and she incurred
medical bills.
To establish a claim of compensatory damages, an appellant must provide
detailed evidence in support. Carle v. Department of the Navy, EEOC
Appeal No. 01922369 (January 5, 1993). In Carle, the Commission described
the type of objective evidence that may be considered when assessing the
merits of a request for damages based on emotional distress, including,
e.g., (a) copies of receipts and/or bills for medical care medication,
and transportation to the doctor; (b) a statement by appellant describing
her emotional distress and statements from witnesses, both on and off
the job, describing the distress, including detailed information on
physical or behavioral manifestations of the distress, the intensity
of the distress, the duration of the distress, and examples of how the
distress affected appellant day to day, both on and off the job; (c)
objective and other evidence linking expenses, if any, and the distress
to the alleged unlawful discrimination; and (d) any other information
establishing the claim.
We note that in a letter dated November 19, 1997, the agency requested
that appellant provide objective evidence of the damages claimed and
the causal relationship between the alleged acts of discrimination and
the damages claimed. We find that the agency's request for objective
evidence in support of her claim for compensatory damages and pecuniary
damages failed to provide appellant with sufficient information as to
the evidence necessary to prove damages and entitlement. The agency
should advise appellant that she should submit objective evidence such as
statements concerning her emotional pain or suffering, inconvenience,
mental anguish, loss of enjoyment of life, injury to professional
standing, injury to character or reputation, injury to credit standing,
loss of health, and any other nonpecuniary losses that are incurred
as a result of the alleged discriminatory conduct. It further should
advise her that she may submit statements from others, including family
members, friends, health care providers, other counselors addressing,
for example, the outward manifestations or physical consequences of
emotional distress. Objective evidence may include documents indicating
appellant's actual out-of-pocket expenses, if any, related to medical
treatment, counseling, and so forth, related to the injury allegedly
caused by discrimination. The agency should advise appellant that she
must establish a connection between the alleged discriminatory action
and the resulting injury. We further note that an agency also should
inform appellant that a request for compensatory damages related to
emotional pain and suffering may permit the agency to seek personal and
sensitive information from her in order to determine whether the injury
is linked solely, partially, or not at all to the alleged discriminatory
conduct. See Robert Broughton v. Department of the Navy, EEOC Appeal
No. 01951999 (April 25, 1995). Further, in light of appellant's claim
for compensatory damages, the effects of the alleged violations may not
have been completely eradicated. See Tracy D. Faircloth v. Department
of the Army, EEOC Appeal No. 01954108 (February 27, 1997). Therefore,
the agency's dismissal of allegations 2-6 and 8-9 on the grounds of
mootness is hereby REVERSED.
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
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 McGovern 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).
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).
In the present case, appellant alleges that she was subjected to ongoing
harassment. The incidents set forth in appellant's complaint occurred
in the period of April 1996 to October 1997. Appellant initiated contact
with an EEO Counselor on July 21, 1997. We note that the agency failed
to address the issue of a continuing violation in its final decision.
We find that the issue of a continuing violation needs to be addressed.
It is well-settled that where, as here, there is an issue of timeliness,
"[a]n agency always bears the burden of obtaining sufficient information
to support a reasoned determination as to timeliness." Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).
Moreover, where, as here, a complainant alleges "recurring incidents"
of discrimination, "an agency is obligated to initiate an inquiry into
whether any allegations untimely raised fall within the ambit of the
continuing violation theory." Guy v. Department of Energy, EEOC Request
No. 05930703 (December 16, 1993) (citing Williams). As the Commission
further held in Williams, where an agency's final decision fails to
address the issue of continuing violation, the complaint "must be remanded
for consideration of this question and issuance of a new final agency
decision making a specific determination under the continuing violation
theory." Accordingly, the agency's decision to dismiss allegations 3-6 of
appellant's complaint on the grounds of untimely EEO contact is VACATED.
Allegations 3-6 are hereby REMANDED to the agency for a determination
regarding whether a continuing violation has been established.
CONCLUSION
The agency's decision to dismiss allegation 7 on the grounds that
appellant elected to proceed through the negotiated grievance procedure
is AFFIRMED. The agency's decision to dismiss allegations 1-2 and 8
is REVERSED. The agency's decision to dismiss allegations 3-6 on the
grounds of untimely EEO contact is VACATED.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
The agency shall conduct a supplemental investigation into whether
appellant has established a continuing violation.
Thereafter, the agency shall decide whether to process or dismiss
allegations 3-6 of appellant's complaint. 29 C.F.R. �1614.106 et seq.
The supplemental investigation and issuance of the notice of processing
and/or final decision must be completed within thirty (30) calendar days
of the date this decision becomes final. A copy of the final decision
and/or notice of processing must be submitted to the Compliance Officer,
as referenced below.
The agency is ORDERED to process allegations 1-2 and 8-9 of the remanded
complaint in accordance with 29 C.F.R. �1614.108. The agency shall
acknowledge to the appellant that it has received the remanded allegations
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to appellant a copy of the investigative file and
also shall notify appellant of the appropriate rights within one hundred
fifty (150) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If the appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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:
April 16, 1999
DATE Ronnie Blumenthal, Director
1In light of our affirmance of the dismissal of allegation 7
on this grounds, we need not address the agency's alternative
grounds for dismissal.