01A01885_r
09-25-2002
Agnes M. Green, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Agnes M. Green v. Department of the Treasury
01A01885
September 25, 2002
.
Agnes M. Green,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A01885
Agency No. 98-3016R
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated November 19, 1996, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Complainant initiated contact with an EEO Counselor on July 21, 1997, and
subsequently filed a formal complaint on October 21, 1997. In her formal
complaint, complainant alleged that she was subjected to discrimination
on the bases of race (African-American) and in reprisal for prior 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 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; and
In or about October 1997, the agency defamed her character and
demonstrated a willful intent to publicly embarrass and humiliate her.
In a final decision dated December 19, 1997, the agency dismissed claims
3-7 on the grounds of failure to contact an EEO Counselor in a timely
manner. The agency determined that complainant's EEO contact on July 21,
1997, with regard to these claims was beyond the 45-day limitation period.
The agency dismissed claims 1-8 on the grounds that complainant elected
to proceed through the negotiated grievance procedure. According to the
agency, complainant had filed numerous grievances concerning many of the
alleged acts of discrimination described in her complaint. The agency
also dismissed claims 2-9 of the complaint on the grounds of mootness.
The agency concluded that because complainant had been removed from her
position with the agency effective October 15, 1997, it can be said with
reasonable certainty that the actions set forth in claims 2-9 are not
likely to recur. Thereafter, complainant filed an appeal from the final
decision with the Commission.
In its decision dated April 16, 1999, the Commission affirmed the
agency's dismissal of claim 7 Specifically, the Commission found
that claim 7 had been the subject of a grievance filed by complainant
on August 6, 1996, and that complainant elected to pursue the matter
through the negotiated grievance procedure and not the EEO process.
Regarding claims 1- 6 and claim 8, the Commission determined that they
were not the subject of previously filed grievances. The Commission also
found that complainant's removal from the agency did not render claims
2 - 6 and claims 8 and 9 moot, and did not completely and irrevocably
eradicate the effects of the alleged violations. Finally, the Commission
found that the agency failed to consider whether complainant's remaining
claims were part of a continuing violation. The Commission reversed the
agency's dismissal of claims 1 - 2 and 8- 9; and vacated the agency's
dismissal of claims 3- 6. The Commission remanded claims 1 - 2 and 8
- 9 for further processing. The Commission also directed the agency
to conduct a supplemental investigation regarding whether complainant
established a continuing violation, and thereafter decide whether to
process or to dismiss claims 3 - 6. Green v. Department of the Treasury,
EEOC Appeal No. 01982122 (April 16, 1999).
Following the Commission's remand, the agency issued the final decision
dated November 19, 1996, which is the subject of the instant appeal.
In its November 19, 1996 final decision, the agency dismissed the
remanded claims pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(2)
on the grounds of untimely EEO Counselor contact. Specifically, the
agency determined that the remanded claims were not part of a continuing
violation. The agency found that complainant could not avail herself
of the continuing violation theory because she suspected discrimination
regarding the claims occurring outside of the 45-day limitation period
and failed to seek counseling in a timely manner.
Alternatively, the agency dismissed claims 1- 6, 8 and 9 pursuant to 29
C.F.R. � 1614.107(a)(4) which provides that the agency shall dismiss a
complaint where the complainant has raised the matter in an appeal to the
MSPB and �1614.301 or �1614.302 indicates that the complainant has elected
to pursue the non-eeo process. The agency noted that on November 6, 1997,
complainant filed an appeal with the Merit Systems Protection Board (MSPB)
regarding the agency's removal action against her. The agency argued
that the claims raised in the instant EEO complaint are inextricably
intertwined and encompassed by the appeal of her removal to the MSPB.
The record contains copies of complainant's MSPB appeal and a summary of a
pre-hearing conference. Upon review of these documents, the Commission
is not persuaded that complainant's EEO claims are subsumed by her
MSPB appeal. The summary of the pre-hearing conference indicates that
complainant claims that the agency's removal action was discriminatory
based on her race and in reprisal for her having won a grievance decision
against the agency. The summary does not, however, refer to the specific
claims raised n complainant's EEO complaint. We find therefore, that
the record does not support the agency's finding. The agency's decision
dismissing claims 1-6 and claims 8 and 9 pursuant to EEOC Regulation 29
C.F.R. � 1614.107(a)(4) was improper and is REVERSED.
Alternatively, the agency dismissed �any and all events of
alleged harassment occurring prior to June 6, 1997 [45 days prior
to complainant's July 21, 1997 initial EEO contact]� pursuant to 29
C.F.R. � 1614.107(a)(2) for untimely contact of an EEO Counselor.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of an EEO Counselor
within 45 days 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. However, EEOC Regulations provide that the agency or the
Commission shall extend the time limits when the individual shows that
he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he was prevented by circumstances beyond his 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 claims 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 Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States
Postal Service, EEOC Request No. 05901150 (December 28, 1990).
The Commission finds that the agency improperly dismissed the
claims regarding matters purportedly occurring prior to June 6,
1997, for untimely EEO counselor contact. The Commission finds that
complainant's complaint concerns matters that comprise a claim of ongoing
discrimination, as discussed above. The Commission has held that an
agency should not ignore the pattern aspect of a complainant's claims and
define the issues in a piecemeal manner where an analogous theme unites
the matters contained therein. Meaney v. Department of the Treasury, EEOC
Request No. 05940169 (November 3, 1994). The Commission notes that claims
1-6, 8 and 9 address alleged discriminatory harassment by the agency's
management officials. Thus, we find that the incidents in complainant's
complaint are part of a continuing violation. Because the most recent
chronological event addressed in the complaint occurred within 45-days
of the complainant's initial contact of an EEO Counselor on July 21,
1997, we find that the EEO contact was timely with regard to all the
matters raised in the complaint.
Accordingly, the agency's decision to dismiss complaint's complaint is
hereby REVERSED. The complaint is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 25, 2002
__________________
Date