01980761
10-02-1998
Julia D. Palmer, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Julia D. Palmer, )
Appellant, )
)
v. ) Appeal No. 01980761
) Agency No. 97-63-0246
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
______________________________)
DECISION
INTRODUCTION
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., �501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq. and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. The final agency
decision was dated September 24, 1997. The appeal was postmarked November
5, 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.<1>
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed familial
status as a basis for appellant's complaint on the grounds that it failed
to state a claim, and nine allegations because they were not brought
to the attention of an EEO Counselor and were not like or related to a
matter that was brought to the attention of a Counselor.
BACKGROUND
The record indicates that on April 7, 1997, appellant initiated contact
with an EEO Counselor regarding her complaint. Informal efforts to
resolve her concerns were unsuccessful. On June 20, 1997, appellant
filed a formal complaint, alleging that she was the victim of unlawful
employment discrimination on the bases of race (unspecified), sex
(female), national origin (unspecified), age (unspecified), disability
(unspecified), familial status (unspecified), and in reprisal for prior
EEO activity when:
Appellant's immediate supervisor ("S1") harshly criticized appellant's
work;
S1 made false and defamatory statements about appellant;
S1 did not allow appellant to talk back to him or to express her opinion;
S1 pointed his finger at appellant, almost touching her chest, while
talking to her;
S1 moved appellant to a secluded area of the office and would not allow
her to ask questions of other employees;
S1 accused appellant of not doing her work;
S1 accused appellant of staring at coworkers;
S1 accused appellant of insubordination when she refused to give him
her notes;
S1 accused appellant of lying;
S1 denied appellant training on the Pine e-mail system;
S1 gave appellant a poor mid-point performance evaluation;
S1 told appellant she needed re-training on MAGFOR, a computer program
appellant feels she knows well;
Appellant was not promoted;
Appellant was limited in her advancement opportunities;
Appellant received limited training;
S1 prohibited appellant from making work-related telephone calls;
S1 prohibited appellant from running NBG reports;
S1 did not allow appellant to use the telephone to call an EEO Counselor
or her attorney;
S1 manipulated the computer system so that another employee would
receive credit for appellant's work;
S1 threw a copy of Title 13 at appellant; and
S1 denied appellant's request to record a meeting about the NBG reports.
Appellant alleged that the foregoing acts by S1 created a hostile work
environment.
On September 24, 1997, the agency issued a final decision dismissing
familial status as a basis for appellant's complaint, pursuant to 29
C.F.R. �1614.107(a), for failure to state a claim, and allegations
(13) through (21), pursuant to 29 C.F.R. �1614.107(b), for raising
matters that were not brought to the attention of a Counselor and were
not like or related to matters that were brought to the attention of a
Counselor. Specifically, the agency determined that familial status was
not a covered basis under 29 C.F.R. �1614, and that appellant raised the
matters identified in allegations (13) through (21) only after completion
of EEO counseling.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.103(a) provides that individual and
class complaints of employment discrimination and retaliation prohibited
by Title VII (discrimination on the bases of race, color, religion,
sex and national origin), the ADEA (discrimination on the basis of
age when the aggrieved individual is at least forty years of age),
the Rehabilitation Act (discrimination on the basis of disability),
or the Equal Pay Act (sex-based wage discrimination) shall be processed
in accordance with this part. EEOC Regulation 29 C.F.R. �1614.101(b)
provides that no person shall be subject to retaliation for opposing any
practice made unlawful by Title VII of the Civil Rights Act (Title VII)
(42 U.S.C. �2000e et seq.), the Equal Pay Act (29 U.S.C. �206(d)), or the
Rehabilitation Act (29 U.S.C. �791 et seq.), or for participating in any
stage of administrative or judicial proceedings under these statutes.
As an employee's familial status is not a protected basis under the
statutes covered by 29 C.F.R. �1614, we find that the agency correctly
dismissed it as a basis for appellant's complaint.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that an
agency shall dismiss a complaint or portion thereof which raises a matter
that has not been brought to the attention of an EEO Counselor, and is
not like or related to a matter on which the complainant has received
counseling. The EEOC Regulations further direct an EEO Counselor to
inform a complainant that only matters related thereto may be raised in
a subsequent complaint filed with the agency. 29 C.F.R. �1614.105(b).
A later allegation or complaint is "like or related" to the original
complaint if the later allegation or complaint adds to or clarifies
the original complaint and could have reasonably been expected to grow
out of the original complaint during the investigation. See Calhoun
v. United States Postal Service, EEOC Request No. 05891068 (March 8,
1990); Webber v. Department of Health and Human Services, EEOC Appeal
No. 01900902 (February 28, 1990).
In the instant case, we find that the record supports the agency's
determination that appellant did not raise the matters identified in
allegations (13) through (21) during counseling. However, that is only
half of the analysis that must be undertaken under this provision of
29 C.F.R. �1614.107(b). Additionally, it must be determined whether
the new allegations are sufficiently like or related to those appellant
raised during counseling. Appellant alleged that the acts of S1 created
a hostile work environment. Except for allegations (13) through (15),
the subsequent allegations concerned other actions by S1 that contributed
to this alleged hostile work environment. Accordingly, we find that
allegations (16) through (21) are sufficiently like or related to have
been included for investigation, and, therefore, the agency erred in
dismissing them pursuant to 29 C.F.R. �1614.107(b).
By contrast, allegations (13) through (15) concern generalized complaints
regarding appellant's lack of training, promotion, and advancement
opportunities. Thus, we find that these allegations do not add to or
clarify those appellant raised during counseling, nor could they have
reasonably been expected to grow out of the original complaint during
investigation. Consequently, we find that the agency correctly dismissed
them pursuant to 29 C.F.R. �1614.107(b).
CONCLUSION
Accordingly, the agency's decision to dismiss the basis of familial
status and allegations (13) through (15) was proper and is AFFIRMED
for the reasons set forth herein. The agency's decision to dismiss
allegations (16) through (21) was improper and 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. �1614.410.
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 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. 2, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1The 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.