01980505
10-16-1998
Geraldine Lujan, Appellant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Geraldine Lujan, )
Appellant, )
)
v. ) Appeal No. 01980505
) Agency No. KV1M97035
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
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. Appellant received the final agency
decision on September 15, 1997. The appeal was postmarked October 14,
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.
ISSUES PRESENTED
The issues presented on appeal are whether the agency properly dismissed
appellant's complaint on the grounds of failure to state a claim and
allegations 2-5 of the complaint on the alternative grounds of failure
to contact an EEO Counselor in a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on June 27, 1997.
On August 15, 1997, appellant filed a formal EEO complaint wherein she
alleged that she had been discriminated against on the bases of her
mental disability (post-traumatic stress syndrome) and in reprisal for
her previous EEO activity when:
1. On May 15, 1997, her second-level supervisor issued her an annual
performance appraisal with an overall rating of �Fully Successful� with
appraisal factors in the �5" and �6" point range, and she believes she
received this rating because her acting supervisor gave the second-level
supervisor negative feedback concerning appellant's performance of
her duties.
2. In January 1997, an official alleged by appellant in a prior complaint
to have discriminated against her was named as her acting supervisor.
Appellant claims that her acting supervisor has harassed her by telling
employees and management about her previous complaints; by allowing other
employees to take excessive breaks and lunch periods while scrutinizing
her time; by allowing employees to make personal telephone calls;
by showing favoritism toward another coworker; by taking credit for
appellant's work and then telling another supervisor to nominate her for
the Star Performance Award; and by discrediting appellant's work in that
she has stated appellant has poor work performance.
3. On April 1, 1997, appellant's acting supervisor received a 616 document
for the April, May, June 1997 quarter and the acting supervisor did not
give the document to appellant on that day, and approximately two weeks
later, an agency official asked the acting supervisor for the document
and she denied receiving it. Appellant alleges that her acting supervisor
hindered her work by not giving her the document immediately.
4. A letter dated January 1996, regarding appellant's deposition regarding
appellant's employment discrimination civil action was improperly in
her 971 file.
5. Appellant did not receive formal training on the 616 documents.
In its final decision, the agency dismissed appellant's complaint on the
grounds of failure to state a claim. The agency determined with regard to
allegation 1 that appellant's receipt of a �Fully Successful� performance
rating did not constitute an adverse action against appellant. As for
allegations 2-5, the agency determined that appellant did not suffer a
personal loss or harm with respect to a term, condition or privilege of
her employment. The agency also dismissed allegations 2-5 on the grounds
that appellant failed to contact an EEO Counselor in a timely manner.
The agency stated that considerably more than 45 days elapsed between
the occurrence of the alleged actions and appellant's contact of an
EEO Counselor.
On appeal, appellant contends that the agency's actions against her
constitute a continuing violation. Appellant argues that the alleged
incidents are part of a continuing set of practices that have the intent
of removing her from the agency.
In response, the agency asserts with regard to allegation 1 that
appellant's performance ratings were not adverse as her performance
for the relevant period was satisfactory. The agency notes with respect
to appellant's contention that her rights under a reduction in force
and promotion actions are lessened by this rating that even if this were
true, the effect on appellant's employment is speculative and does not
constitute a present harm. As for allegations 2-5, the agency maintains
that although appellant disagrees with the actions of her supervisors,
customers, and coworkers, she does not explain how the alleged actions
caused her to suffer a significant harm with respect to a term, condition
or privilege of her employment. The agency argues that allegations 2-5
constitute nothing more than a disagreement with the supervision appellant
is under and that the relevant matters have no material effect on the
conditions of appellant's employment. With regard to appellant's position
that she has alleged a continuing violation, the agency asserts that
appellant has not established how the untimely allegations are related to
allegation 1. According to the agency, the issues in these allegations
involve different persons and do not appear to be related, except in
the general sense that the issues concern appellant's job performance.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. An agency shall accept a
complaint from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by that agency
because of race, color, religion, sex, national origin, age or disabling
condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's Federal
sector case precedent has long defined an �aggrieved employee� as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Initially, we shall address the agency's dismissal of allegation 1 on the
grounds of failure to state a claim. The issue is whether appellant's
receipt of a �Fully Satisfactory� performance rating constitutes harm
to a term, condition or privilege of her employment. We find that
this allegation sets forth a valid claim. Although appellant's job
performance was deemed to have met a �Fully Satisfactory� standard,
appellant believes that her job performance merited a higher rating.
By arguing that she received a lower performance rating than she deserved,
appellant presents a claim that reflects harm to a term, condition or
privilege of her employment. Accordingly, the agency's decision to
dismiss allegation 1 of appellant's complaint on the grounds of failure
to state a claim was improper and is REVERSED. Allegation 1 is hereby
REMANDED for further processing in accordance with the Order below.
With regard to allegations 2 and 3, these allegations refer to appellant
being harassed by her acting supervisor. In Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997), the Commission
has recently reaffirmed what is required in harassment cases in order
to state a claim under the aforementioned regulation. In conjunction
with its discussion of existing precedent in this area, the Commission
advised that (1) the ultimate merit of the allegations (whether they are
true/whether discrimination has occurred) may not be considered; and (2)
the complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant can prove no set of facts
in support of the claim which would entitle the complainant to relief.
The Commission further instructed that claims of harassment should
be accepted where the complainant has made factual allegations which,
when considered together and treated as true, are sufficient to state a
claim either of (1) disparate treatment regarding hiring, termination,
compensation or any other specific term, condition, or privilege of
employment; or (2) a hostile or abusive work environment. Cobb, at p. 7.
The Commission held that �a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment....[t]he trier of fact should consider whether
a reasonable person in the complainant's circumstances would have found
the alleged behavior to be hostile or abusive.� Cobb, at pp. 6-7.
While the Commission has held that �a few isolated incidents of alleged
harassment usually are not sufficient to state a harassment claim,� [Cobb,
at p.5], in this case, appellant alleged several forms of adverse action,
that the harassment was ongoing, occurred on various dates, and created a
hostile work environment. We find that appellant has set forth a claim
of harassment with regard to allegations 2-3. Accordingly, the agency's
decision to dismiss allegations 2-3 on the grounds of failure to state
a claim was improper and is REVERSED.
With regard to allegation 4, we find that appellant has stated a claim.
Appellant alleged that a letter regarding her deposition for her civil
action, which concerns alleged employment discrimination and involves
the identified acting supervisor, was improperly contained in her 971
file. Clearly, an employee has a reasonable expectation that the proper
documents will be kept in their employee files. Appellant alleged that
an improper document was in her file; she alleged that this maintenance of
improper documentation was due to discrimination. We find that appellant
stated a claim and the agency's dismissal of allegation 4 was improper
and is REVERSED.
As for allegation 5, we find that appellant's claim that she did not
receive formal training on the 616 documents alleges harm to a term,
condition or privilege of her employment. Therefore, appellant is
an aggrieved employee. Accordingly, the agency's decision to dismiss
allegation 5 on the grounds of failure to state a claim was improper
and 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 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.
Appellant also argues that the allegations of her complaint form a
continuing violation. 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. United States Postal Service, EEOC Request No. 05901150 (December 28,
1990); Starr v. United States 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 determining whether a continuing violation exists, the Commission
has relied on the decision in Berry, wherein the court set forth three
relevant factors:
The first is subject matter. Do the alleged acts involve the same type
of discrimination, tending to connect them in a continuing violation?
The second is frequency. Are the alleged acts recurring (e.g., a
biweekly paycheck) or more in the nature of an isolated work assignment
or employment decision? The third factor, perhaps of most importance,
is degree of permanence. Does the act have the degree of permanence
which should trigger an employee's awareness of and duty to assert
his or her rights, or which should indicate to the employee that the
continued existence of the adverse consequences of the act is to be
expected without being dependent on a continuing intent to discriminate?
Berry, 715 F.2d at 981. Incidents that are sufficiently distinct
to trigger the running of the limitations period do not constitute
continuing violations. See, e.g., Miller v. Shawmut Bank, 726
F. Supp. 337, 341 (D. Mass. 1989); Cogen v. Milton Bradley Co./Hasbro
Inc., 449 Empl. Prac. Dec. (CCH) �38,894 (D. Mass. 1989). In Cogen,
the court rejected the plaintiff's attempt to apply the continuing
violation theory to, among other allegations, an assignment issue.
The court stated that "discrete acts of discrimination taking place
at identifiable points in time" are not continuing violations for the
purpose of extending the limitations period. Id. at 58,757; see also
Edinboro v. Department of Health & Human Services, 704 F. Supp. 364,
367 (S.D. N.Y. 1988) (demotion not a continuing violation).
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. 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).
Although we have determined that the agency's dismissal of allegations
2 through 5 on the grounds of failure to state a claim was improper,
we must now examine whether the dismissal of these allegations was
warranted on the grounds of untimely EEO contact. Allegation 1
dealing with appellant's performance rating was accepted as timely.
Allegations 2, 3, and 5 all relate to issues that may have had an impact
on appellant's performance rating. The matters of appellant not receiving
training and necessary documents, appellant's work being discredited,
and appellant receiving less favorable treatment than other employees are
issues that bear a sufficient nexus to appellant's performance rating.
Furthermore, the allegations 2 through 5 all relate to the identified
acting supervisor. Therefore, appellant has set forth a continuing
violation with regard to allegations 2 through 5. Accordingly, the
agency's decision to dismiss allegations 2 through 5 on the grounds of
untimely EEO contact was improper and is REVERSED. These allegations are
hereby REMANDED for further processing in accordance with the ORDER below.
CONCLUSION
The agency's decision dismissing appellant's allegations on the grounds of
failure to state a claim and/or untimely EEO contact is hereby REVERSED.
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. �1614.410.
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 (R0993)
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. 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 (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. 16, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations