01981585
10-21-1998
Claudia Blair, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Claudia Blair, )
Appellant, )
)
v. ) Appeal No. 01981585
) Agency No. OD_EEO970001
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
On December 18, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated November 14, 1997, pertaining
to 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.<1> In her complaint, appellant alleged that she was subjected
to discrimination on the bases of sex (female) and in reprisal for prior
EEO activity. The agency identified appellant's complaint as alleging
discrimination when:
On September 6, 1996, appellant's supervisor ("S1") intimidated appellant
during a discussion concerning the assignment of one of appellant's
staff by telling appellant that "she was impudent and out of line,
and he was the authority;"
On August 21, 1996, during an OEP senior staff meeting, S1 belittled
appellant's concerns about working late at night;
S1 treated appellant differently than male employees with respect to
the assignment of staff and functions;
S1 expected appellant and other female professional staff members in
OEP to do support staff work that was not expected of male OEP staff;
S1 made comments which were demeaning to appellant and hostile to women,
and attempted to verbally and physically intimidate appellant;
S1 treated men more favorably than women with respect to medical problems
and requests for performing work at home;
S1 did not view appellant's ideas as important as those expressed by
male employees, and did not respect appellant's authority as Director,
DEOIR, when there was a difference of opinion between her and male
staff members;
Male employees received preferential treatment with respect to obtaining
computer equipment and other resources;
S1 failed to give appellant opportunities for growth, failed to give
appellant recognition for her work, failed to give appellant credit for
her abilities and for work performed, and gave a male OER staff member
credit for appellant's work; and
Management officials attempted to intimidate appellant, removed her
responsibilities, transferred FTEs out of the DEOIR, misrepresented
appellant's actions to DEOIR and other agency staff, and publicly
demeaned appellant.
The record contains a 37 page chronology appellant prepared, listing
incidents of alleged harassment that occurred from November 3, 1990,
to September 17, 1997. Also, in the pages attached to appellant's
pre-complaint form, she states that she "first met with [the EEO
Counselor] on September 24, [1996], with the intent to file an EEO
complaint."
The agency dismissed allegation (1) pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim. and allegations
(2) through (10), pursuant to 29 C.F.R. �1614.107(b), for failure to
initiate contact with an EEO Counselor in a timely manner. Specifically,
the agency determined that appellant was not aggrieved as the result
of the incident identified in allegation (1) because it represented
merely a verbal attack. The agency also found that because the incidents
identified in allegations (2) through (10) occurred more than forty-five
(45) days prior to appellant's October 10, 1996 initial EEO Counselor
contact, they were untimely.<2> Additionally, the agency determined that
appellant failed to establish a continuing violation because she had a
reasonable suspicion of discrimination as early as 1991, as evidenced
by appellant's admission that she contacted and discussed her concerns
with EEO officials.
On appeal, appellant contends that the agency improperly characterized
her complaint, thereby diminishing the substance of her allegations.
Appellant asserts that the complaint should be restated as alleging that
appellant was subjected to discrimination on the bases of sex (female)
and in reprisal for prior EEO activity when:
Over a period of seven years, appellant's supervisors affected the terms
and conditions of appellant's employment by engaging in a pattern and
practice of belittling treatment based on her sex, including elimination
of job duties, denial of advancement opportunities and resources,
verbal and physical intimidation, and sexual stereotyping; and
Subsequent to appellant exercising her right to protected EEO activity,
the agency continued to affect the terms and conditions of her employment
by eliminating her duties, denying her advancement opportunities,
and belittling her.
With regard to the timeliness of her complaint, appellant asserts that she
contacted EEO Counselors on August 4, 1992, October 22, 1992, and October
27, 1992; an Employee Assistance Program ("EAP") Counselor on October 29,
1992; and the Director, OD Personnel, in February 1996, to discuss what
she considered was unfair treatment. On all of these occasions, appellant
contends that she was dissuaded from pursuing the matter further.
Further, appellant contends that the agency erred in finding that she
failed to establish a continuing violation. Appellant argues that her
timely and untimely allegations share a common nexus or theme, i.e.,
that S1 and other supervisors subjected appellant to sex-based harassment.
DEFINITION OF APPELLANT'S COMPLAINT
Upon review of the record, we find that the agency erred in defining
appellant's complaint only to the extent that it neglected to identify
the ongoing nature of the incidents of alleged discrimination identified
in allegations (3) through (10). We find that the agency otherwise
accurately categorized the numerous instances of alleged discrimination
appellant raised in the chronology she prepared. Moreover, we find that
the definition appellant attempts to introduce, is insufficiently precise
to describe generally the actions or practices that form the basis of
her complaint. See 29 C.F.R. �1614.106(c); EEOC Management Directive
110 ("MD-110"), ch. 2, page 23, �2(b). Accordingly, allegations (3)
through (10) should properly reflect appellant's assertion that she was
subjected to these instances of discrimination between August 10, 1996,
and September 17, 1997 (See Part II, infra.).
II. TIMELINESS OF APPELLANT'S COMPLAINT
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 time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
As noted in Footnote (2), supra., the record discloses that appellant's
initial EEO Counselor contact occurred on September 24, 1996.
Consequently, we find that allegation (2) was timely raised, because
appellant's EEO Counselor contact occurred within the forty-five (45)
day limitation period.
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).
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).
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).
Further, it is 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. Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
In the instant case, we find that appellant failed to establish
a continuing violation because the record discloses that she had a
reasonable suspicion of discrimination as early as August 4, 1992, when
appellant spoke to one of the agency's EEO Counselors. On that date and
on four (4) subsequent occasions, appellant sought advice concerning what
she considered to be discriminatory treatment by S1 and other supervisors.
Appellant contends that she was dissuaded from pursuing her EEO rights by
the various persons with whom she spoke. However, the record indicates
that the persons with whom she spoke denied appellant's contention because
they remembered no such allegations of discrimination raised by appellant.
Additionally, appellant offered no evidence in rebuttal. Moreover, in
the attachment she submitted with her June 30, 1997 pre-complaint form,
appellant clearly stated that she first met with an EEO Counselor on
September 24, 1996, with the intent to file an EEO complaint. We find,
therefore, that appellant's prior discussions with an EEO Counselor and
other personnel officials, do not satisfy the criteria for EEO Counselor
contact. The parties whom appellant contacted on August 4, 1992, October
22, 1992, October 27, 1992, and February 1996, were clearly connected to
the EEO process; however, the record shows that the prior contacts did
not manifest an intention to begin the EEO complaint process. See Floyd
v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989).
Based on the foregoing, we find that appellant's September 24, 1996
initial EEO Counselor contact was untimely with respect to all incidents
of alleged harassment which occurred before August 10, 1996.
However, we note that the agency dismissed allegations (3) through
(10) in their entirety. We find that this decision was in error.
Appellant's chronology detailing the acts of alleged harassment to
which she was subjected clearly identified acts which occurred during
the forty-five (45) day period before her initial EEO Counselor contact.
Additionally, appellant identified a number of allegations of harassment
which occurred after she initiated counseling, but before the submission
of her formal complaint. Accordingly, we find that the agency's decision
to dismiss the portions of allegations (3) through (10) which occurred
after August 10, 1996, for untimely EEO Counselor contact, was improper.
On remand, the agency is advised to examine appellant's chronology to
determine which specific acts of harassment are to be investigated.
III. ALLEGATION (1)
The agency dismissed allegation (1) on the grounds that it failed to state
a claim. If allegation (1) were to be viewed by itself, the agency's
decision would be correct. See Backo v. U.S. Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. U.S. Postal Service, EEOC Request
No. 05940695 (February 9, 1995). However, in appellant's complaint,
she alleged a series of events which allegedly occurred from August 10,
1996, through September 17 1997. Specifically, appellant alleged that
she was subjected to conduct which created a hostile work environment.
When allegation (1) is viewed in the context of appellant's hostile work
environment complaint, it states a claim. Consequently, the agency's
dismissal of this allegation for failure to state a claim was improper.
See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994).
Accordingly, the agency's definition of appellant's complaint and
its decision to dismiss the portions of allegations (3) through (10)
that occurred prior to August 10, 1996, is AFFIRMED for the reasons set
forth herein. The agency's decision to dismiss allegations (1), (2),
and the portions of allegations (3) through (10) that occurred after
August 10, 1996, is hereby REVERSED. Those allegations are REMANDED to
the agency for further processing in accordance with this decision and
the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations 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. �1614.10.
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 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. 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:
Oct. 21, 1998
____________________________
DATE Ronnie Blumenthal, Director
1The agency was unable to supply a copy of a certified mail return
receipt or any other material capable of establishing the date
appellant received the agency's final decision. Accordingly,
since the agency failed to submit evidence of the date of receipt,
the Commission presumes that appellant's appeal was filed within
thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.
2The Commission notes that the FAD identified appellant's initial EEO
Counselor contact as occurring on October 10, 1996. However, the record
shows that the actual date of initial EEO Counselor contact was September
24, 1996.