01980886
10-29-1998
Alfreda D. Stewart, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Alfreda D. Stewart, )
Appellant, )
)
v. ) Appeal No. 01980886
) Agency No. NCN-97-ARC-A036
Daniel S. Goldin, )
Administrator, )
National Aeronautics and )
Space Administration, )
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. and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The final agency decision was
issued on October 8, 1997. The appeal was postmarked November 4, 1997.
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.
The record contains an EEO Counselor's Report reflecting that appellant
initiated contact with an EEO Counselor on April 10, 1997. The Report
further reflects that appellant underwent EEO counseling on the issue
that she was harassed by management because she is on a flex-time schedule
set by her physician, and that she is treated differently from co-workers
in her division who have had work-related injuries.
On July 10, 1997, appellant filed a formal complaint, alleging that she
was the victim of unlawful employment discrimination on the bases of race,
disability, and reprisal. Appellant's request for relief consisted,
in part, of compensatory damages.
On October 8, 1997, the agency issued a final decision. Therein,
the agency determined that appellant's complaint was comprised of two
allegations, one of which was divided into eight subsections. The agency
identified the allegations in the following fashion.
1. Because of your race . . . and disability and in retaliation
for having been granted workers' compensation, you were harassed by
management when:
a. you were pressured to work more hours and on March 17, 1997, you were
told that your problems stemmed from your working a part-time schedule.
b. the Rehabilitation Counselor's March 17, 1997 request that you be
provided with your own office was denied.
c. on April 10, 1997, you received three additional assignments from
the Deputy Branch Chief after you had been told that you would receive
your assignments from and report to the Branch Chief.
d. on January 23, 1997, [an agency employee] made inappropriate comments
regarding your attire in the presence of others. In an amendment to
her formal complaint, appellant stated that she was embarrassed by the
comments of the agency employee, and that the employee could, at the
very least, have taken appellant into her office to talk about the matter.
e. on January 9, 1997, management statements attempted to discourage
you from listing your future career goals and from attending a specific
training course at Simmons College. In an amendment to her formal
complaint, appellant stated that she was incensed by the comments made by
an agency official on this matter, and that the statement of the official
"caused me to believe my chances of ever being promoted in Code JA,
especially if my disability continues, are nil."
f. on January 22, 1997, [an agency employee] left you a note which
informed you to leave a pencil on your desk. In regard to this issue,
appellant stated in an amendment to her formal complaint that the agency
employee's actions made her feel uneasy; and that appellant questioned
why it was "so important that I leave my pencil out on my desk."
g. in October of 1996, you were placed on a detail to Code JA instead
of a permanent position there.
h. as of July 8, 1997, the Notification of Personnel Action form (SF 50)
which would extend your detail in Code JA beyond May 23, 1997, had not
yet been issued.
2. Because of your race . . . disability . . . and in retaliation for
having been granted workers' compensation, you were not considered for any
vacant positions in the agency at the same grade or pay level, and within
the same commuting area, for which you were qualified for reassignment.
The agency accepted for investigation allegations 1(a), (b), and (c)
on the bases of race and disability. The agency dismissed allegations
1(d) - (g) for failure to initiate contact with an EEO Counselor in a
timely fashion. Specifically, the agency found that appellant initiated
contact with an EEO Counselor on April 10, 1997, which was more than
forty-five days after the matters addressed in these allegations
purportedly occurred. The agency further determined that allegations
1(d) - (g) are not part of a continuing violation. The agency also
dismissed allegations 1(d) and 1(e) on the alternative grounds of failure
to state a claim. The agency dismissed allegation 1(h) on the grounds
of mootness. Specifically, the agency found that appellant was informed
that the detail to Code JA was extended to August 31, 1997. The agency
dismissed allegation 2 on the grounds that appellant did not raise the
matter contained therein before an EEO Counselor and that it is not like
or related to matters for which appellant underwent EEO counseling.
Finally, the agency dismissed reprisal as a basis. Specifically, the
agency found that appellant alleged reprisal for being granted a workers'
compensation claim, and determined that this activity is not protected
under EEOC regulations.
On appeal, appellant argues that her initial EEO contact occurred on
April 8, 1997, and not on April 10, 1997, as determined by the agency.
Regarding allegations 1(d) - (f), appellant argues that she did not
contact an EEO Counselor at the time that the purported incidents of
discrimination occurred because she was "having mental difficulty
sorting out what was transpiring, [she] did not want to enter into
contention with the agency, [she] had never filed a complaint before,
[she] hoped this treatment would not continue, and the incidents were
reported to an OWCP representative who was handling [her] transition back
to work." Appellant further argues that these allegations have a common
nexus or theme to matters that have been accepted for investigation.
Appellant also argues that she was rendered aggrieved with regard to the
matters addressed in allegations 1(d) and (e). Regarding allegation (h),
appellant argues that the "agency's statement" in its final decision,
i.e., that appellant's detail to Code JA was extended to August 1997,
proves that the agency maintained her in a detail status four months
after she had informed the agency that she would like to be a part of Code
J. Regarding the dismissal of reprisal as a basis, appellant argues that
her OWCP claim and the EEO complaint are interrelated by a common theme
and nexus. Finally, appellant argues that she underwent EEO counseling
for the matter addressed in allegation 2.
In response, the agency argues that allegations 1(d) - (f) were properly
dismissed for failure to timely contact an EEO Counselor. The agency
further argues that these allegations are not part of a continuing
violation; that allegations 1(d) and (e) fail to state a claim; and
that allegation 1(h) was rendered moot. The agency also argues that
reprisal was properly dismissed as a basis, and that appellant did not
undergo EEO counseling in regard to the matter raised in allegation 2.
Regarding allegation 1(g), the agency argues that this allegation has been
"redelineated" to reflect that appellant requested a permanent position
in April 1997; that this allegation is forwarded for investigation;
and that a copy of the letter of acceptance of allegation 1(g) will be
transmitted to the Commission.
The Commission first notes that though the agency dismissed allegation
1(g) in its final decision, the agency states on appeal that this
allegation has been accepted for investigation. Accordingly, the agency's
decision to dismiss allegation 1(g) is 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 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.
The agency dismissed allegations 1(d) - (f) on the grounds that
appellant's initial EEO Counselor contact in April 1997, was untimely
with regard to the matters contained therein. On appeal, appellant argues
that her delay in contacting an EEO Counselor was attributable to "mental
difficulty in sorting out what was transpiring." When an appellant claims
that a physical condition prevents her from meeting a particular filing
deadline, we have held that in order to justify an untimely filing,
the appellant must be so incapacitated by the condition as to render
her physically unable to make a timely filing. See Zelmer v. USPS,
EEOC Request No. 05890164 (March 8, 1989). The same is true regarding
claims of incapacity related to psychiatric or psychological conditions.
See Crear v. USPS, EEC Request No. 05920700 (October 29, 1992). We find
that the record contains no evidence supporting a finding that appellant
was incapacitated from timely pursuing her EEO complaint.
Appellant also argues that allegations 1(d) - (f) are part of a
continuing violation. The Commission has held that the time requirement
for contacting an EEO Counselor can be waived as to certain allegations
within a complaint when the complainant alleges a continuing violation,
that is, a series of related or discriminatory acts, or the maintenance
of a discriminatory system or policy before and during the filing
period. See McGiven v. USPS, EEC Request No. 05901150 (December 28, 1990).
If one or more of the acts falls within the forty-five day period for
contacting an EEO Counselor, the complaint is timely with regard to
all that constitute a continuing violation. See Valentino v. USPS, 674
F.2d 56, 65 (D.C. Cir. 1982); Verkennes v. Department of Defense, EEC
Request No. 05900700 (September 21, 1990). 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). It is necessary
to determine whether the acts are related by a common nexus or theme.
See Milton v. Weinberger, 645 F.2d 1070 (D.C. Cir. 1981).
Appellant's complaint involves a number of potentially interrelated
incidents of harassment orchestrated by agency management. However,
it is also important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33,
921 F.2d 396 (1st Cir. 1990) (plaintiff who believed he had been subjected
to discrimination had an obligation to file promptly with the EEOC or
lose his claim, as distinguished from the situation where a plaintiff
is unable to appreciate that he is being discriminated against until he
has lived through a series of acts and is thereby able to perceive the
overall discriminatory pattern).
We find that the matters addressed in allegations 1(d) - (f) were
discrete acts that should have prompted appellant to initiate contact
with an EEO Counselor at the time the incidents occurred. Specifically,
we note that in regard to allegation (d), appellant claims that she was
"embarrassed" by the comments relating to her attire; that in regard to
allegation (e), she was "incensed" by the remarks of agency management and
felt that they reflected that promotion possibilities for her were nil;
and that in regard to allegation (f), she "felt uneasy" upon reading the
note informing her to leave a pencil on her desk. Appellant failed to
establish a continuing violation.
The Commission notes that, on appeal, appellant argues that the incidents
of alleged discrimination raised in allegations 1(d) - (f) were reported
to an OWCP representative who was "handling [appellant's] transition
back to work." To the extent that appellant is arguing that her contact
with an OWCP representative constitutes an EEO Counselor contact prior
to April 1997, we find that the OWCP representative is not a party
logically connected to the EEO process, and that this contact did not
manifest an intention to begin the EEO complaint process. See Floyd
v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989).
Appellant failed to present adequate justification pursuant to 29
C.F.R. �1614.105(a)(2), for extending the limitation period beyond
forty-five days. Accordingly, the agency's decision to dismiss
appellant's allegations 1(d) - (f) for failure to initiate contact with
an EEO Counselor in a timely fashion was proper and is AFFIRMED.
Because we affirm the agency's decision to dismiss allegations 1(d) -
(f) for the reasons stated herein, we find it unnecessary to address
the agency's decision to dismiss allegations 1(d) and (e) on alternative
grounds.
EEOC Regulation 29 C.F.R. �1614.107(e) provides that the agency shall
dismiss a complaint that is moot. To determine whether the issues raised
in appellant's complaint remain in dispute, it must be ascertained (1)
if it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur, and (2) if the interim relief or
events have completely and irrevocably eradicated the effects of the
alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625
(1979). When such circumstances exist, no relief is available and no
need for a determination of the rights of the parties is presented.
The agency dismissed allegation 1(h) on the grounds of mootness. We find
that allegation 1(h) has not been rendered moot because, at a minimum,
the agency failed to address appellant's claim for compensatory damages.
The Commission has held that a complaint is not moot when appellant
raises a claim for compensatory damages and the agency fails to address
the matter. See Glover v. USPS, EEC Appeal No. 01930696 (December
9, 1993). Here, appellant requested compensatory damages during the
processing of her complaint. Accordingly, the agency's decision to
dismiss allegation 1(h) on the grounds of mootness was improper and
is REVERSED.
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that raises a matter
that has not been brought to the attention of a Counselor
and is not like or related to a matter that has been brought to the
attention of an EEO Counselor.
The Commission finds that the agency's dismissal of allegation 2
was proper. Allegation 2 addresses the agency's purported failure to
consider appellant for vacancies for positions for which she is qualified.
We determine that this allegation is not like or related to allegations
for which appellant has undergone EEO counseling. Accordingly, the
agency's decision to dismiss allegation 2 was proper and is AFFIRMED.
Finally, the Commission finds that the agency properly dismissed the
basis of reprisal. There is no record that appellant participated in
prior protected activity. In her formal complaint, appellant alleges
that the agency acted in reprisal against her because of her pursuit of
a workers' compensation claim. There is no evidence that this matter
involved opposing a discriminatory practice. Accordingly, the agency's
decision to dismiss reprisal as a basis was proper and is AFFIRMED.
In summary, the Commission makes the following determinations:
1. The agency's decision to dismiss reprisal as a basis of appellant's
complaint was proper and is AFFIRMED.
2. The agency's decision to dismiss allegations 1(d) - (f) on the
grounds that appellant failed to initiate contact with an EEO Counselor
in a timely fashion was proper and is AFFIRMED. The agency's decision
to dismiss allegation 2 on the grounds that appellant did not raise this
matter with an EEO Counselor was proper and is AFFIRMED.
3. The agency's decision to dismiss allegations 1(g) and (h) is REVERSED.
Allegations 1(g) and (h) are REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations (allegations
1(g) and (h)) 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. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 7permit 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:
Oct. 29, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations