05960829
10-01-1998
Mary M. Price, Appellant, v. Davis J. Barram, Administrator, General Services Administration, Agency,
Mary M. Price v. General Services Administration
05960829
October 1, 1998
Mary M. Price, )
Appellant, )
)
v. ) Request No. 05960829
) Appeal No. 01954824
Davis J. Barram, ) Agency No. 943700006
Administrator, )
General Services Administration, )
Agency, )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On November 15, 1996, appellant initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in
Mary M. Price v. Roger M. Johnson, Administrator, General Services
Administration, EEOC Appeal No. 01954824 (August 23, 1996).<1>
EEOC regulations provide that the Commission may, in its discretion,
reconsider any previous decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence that
tends to establish one or more of the three criteria prescribed by 29
C.F.R. �1614.407(c): that new and material evidence was available that
was not available when the previous decision was issued, 29 C.F.R. �
1614.407(c)(1); that the previous decision involved an erroneous
interpretation of law or regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. � 1614.407(c)(2); or that the decision
is of such exceptional nature as to have substantial precedential effects,
29 C.F.R. � 1614.407(c)(3). For the reasons stated below, the Commission
GRANTS appellant's request.
ISSUE PRESENTED
Whether our previous decision properly dismissed sixteen allegations on
the grounds that they did not constitute part of a continuing violation.
ALLEGATIONS
At issue before us in this request for reconsideration are sixteen
allegations which appellant contends are part of a continuing violation
of Title VII which occurred throughout her tenure with the agency.
Those allegations are as follows:
1. From September 15, 1992 through August 1993, appellant's first and
second-line supervisors assigned her to patrol private property in a
high crime area, although white officers were not so assigned.
2. On January 16, 1993, a Fort Worth captain, who did not work with
appellant, gave appellant a letter, allegedly based on his observations
of her in which he referred to her Employee Assistance Counseling.
3. About May 10, 1993, the FPS Director issued appellant a suspension
alleging that she was absent without leave for the time in which she
was ordered home on January 26, 1993.
4. On May 12, 1993, appellant's supervisor trashed her leave request and
continued to deny her leave requests, although he routinely approved leave
requests of white employees. On November 5, 1993, her supervisor said
he had no reason to see her leave requests when asked to approve time.
5. On March 1, 1993, appellant was involuntarily reassigned from Dallas
to Forth Worth.
6. On January 29, 1993, appellant's captain told her to attend a meeting
which she understood was for the purpose of explaining how to file an
EEO complaint and obtain resolution. Appellant asked a fellow employee
to be present as a witness. Management ordered this employee to leave
the room and ordered appellant to surrender her badge, and refused to
provide a receipt for the badge.
7. On January 27, 1993, appellant's captain and a corporal tried to
force appellant to sign an annual leave slip for the prior day when the
captain and her supervisor forced her to go home.
8. On January 26, 1993, as reprisal, the captain demanded appellant's
badge and ordered her home, later saying he had made a mistake.
9. On January 17 and March 16, 1993, Appellant was suspended based on
management's false accusations.
10. On January 14, 1993, the district manager ordered appellant to
surrender her service revolver, standard issue for FPO's in reprisal
for reporting management abuses, leaving appellant unarmed, although in
uniform.
11. On January 11, 1993, appellant's supervisors approached her in a
threatening manner, making her fearful for her personal safety, as she
was seated and working, to the point she called 911.
12. On December 28, 1992, appellant's supervisor assaulted her at her
work stations and said he was going to have her removed from her job.
13. On October 21, 1992, appellant's supervisor issued her a memo
regulating breaks. This directive was not applied to white officers
who continued to take lengthy breaks.
14. From June 1992 through October 21, 1992, appellant's supervisor forced
her to work full days, as receptionist at the console, without breaks,
including lunch and held meetings only with white officers.
15. On or about June 28, 1992, appellant was assigned a locker room
without adequate security and which was accessible to the public.
16. On a continuing basis and through January 7, 1993, appellant was
denied overtime which was made available to white male officers.
BACKGROUND
The agency employed appellant between June 1992 and January 1994. She
was terminated, effective January 7, 1994. While she was employed
with the agency, she brought two EEO complaints against the agency,
the second of which contains the above-referenced allegations.
Earlier Complaint
In September 1992, appellant contacted an EEO counselor with allegations
that her first and second-line supervisors subjected her to discriminatory
harassment and disparate treatment because of race, sex, and previous
EEO activity. The counselor's report stated that appellant was alleging
that her supervisor: (1) stripped her of her police credentials; (2) left
the women's locker room open to the public; and (3) denied her overtime
on two unspecified occasions. The parties resolved the first and second
allegations informally, but were unable to resolve the third allegation.
Appellant filed a formal complaint in April 1993. The agency dismissed
this complaint after appellant failed to respond to its requests for
additional information. There is no record of appellant having appealed
the agency's dismissal of her earlier complaint to the Commission.
Instant Complaint
Appellant contacted a counselor on March 16, 1994 concerning allegations
(2)-(4), (6)-(8), and (10)-(15), identified above. She also raised about
thirteen other allegations concerning events that took place between
August 17, 1993 and January 7, 1994. In a final decision dated August 12,
1994, the agency accepted the latter group of allegations as a continuing
violation claim, but did not address the allegations in the former
group.<2> In an earlier decision on this case, Price v. General Services
Administration, EEOC Appeal No. 01945537 (April 19, 1995), we ordered the
agency to determine whether the above-referenced allegations should be
included in appellant's continuing violation claim. In accordance with
our order, the agency issued two final decision letters. In a letter
dated May 16, 1995, the agency once again notified appellant that it
would accept and investigate appellant's continuing violation claim
to the extent that it encompassed the allegations covering the period
between August 17, 1993 and January 7, 1994. In a second decision,
dated May 18, 1995, the agency dismissed allegations (3) through (15),
but did not address allegations (1), (2) and (16).
Appellant appealed the agency's dismissal of her allegations. She argued
on appeal that the agency misled and stonewalled her in her attempts to
file the earlier EEO complaint. The agency responded that appellant had
a reasonable suspicion of discrimination as far back as September 1992,
but did not contact a counselor on any of the disputed allegations until
March 1994. The previous decision summarily affirmed the agency's
dismissal of the allegations. In her request for reconsideration,
appellant reiterates the argument that she first raised on appeal,
namely that the agency had frustrated her attempts to obtain redress
through the EEO process since September 1992. She also points out the
agency's failure to address allegations (1), (2) and (16).
ANALYSIS AND FINDINGS
The only allegation that was within the 45-day time period was the
allegation concerning appellant's termination on January 7, 1994. All of
the other allegations, both accepted and dismissed, involved events which
occurred more than 45 days before appellant's initial contact with an
EEO counselor on the instant complaint. A comparison of the accepted
allegations with the rejected allegations reveals a striking similarity
between them. Both sets of allegations involve the same bases, the same
supervisors, and the same types of adverse personnel actions and acts of
harassment. Moreover, the incidents appear to have occurred on a regular
basis throughout appellant's employment, and there is no appreciable
time gap between the last rejected allegation and the first accepted
allegation. In other words, there is no difference between the accepted
allegations and the rejected allegations that would justify the agency's
imposition of an arbitrary cut-off date.
According to the counselor's report, appellant raised allegations (2)
through (4), (6) through (8), and (10) through (14) with the EEO counselor
in March 1994. Since the agency already accepted untimely allegations
between August and December 1993, it cannot argue, as it did in its May
18, 1995 decision letter, that appellant's contact with a counselor was
untimely with respect to the allegations which occurred between June
1992 and August 1993. We will therefore order the agency to process
allegations (2) through (4), (6) through (8), and (10) through (14)
as part of its investigation of appellant's continuing violation claim.
As for allegations (1), (5) and (9), appellant did not raise these
allegations with a counselor, either between September 1992 and March 1993
or in March 1994. The agency is required to dismiss allegations that raise
matters not brought to the attention of an EEO counselor, unless they are
like or related to matters that were brought to a counselor's attention.
29 C.F.R. �1614.107(b). To determine whether allegations (1), (5) and
(9) are like or related to the accepted allegations, we must determine
whether they clarify the counseled allegations or could be expected
to grow out of investigation of those allegations. Scher v. United
States Postal Service, EEOC Request No. 05940823 (February 2, 1995).
Appellant characterized the adverse job assignments and suspensions
raised in allegations (1), (5) and (9) as part of a pattern of ongoing
discriminatory harassment, as opposed to separate and discrete incidents
of discrimination in and of themselves. Consequently, we find that
allegations (1), (5) and (9) are like or related to the allegations
that were counseled. Commission regulations generally require that
issues like or related to previously counseled matters be remanded for
counseling themselves. 57 Fed. Reg. at 12642-43 (April 10, 1992);
Quirk v. United States Postal Service, EEOC Request No. 05940631
(February 2, 1995). Where, however, the like or related allegations
concern incidents of discriminatory harassment as part of a continuing
violation, rather than separate or isolated acts of discrimination, the
agency is required to include those incidents in its investigation of
the continuing violation claim, and no further counseling is necessary.
See Mitchell v. Department of Veterans Affairs, EEOC Request No. 05960656
(January 5, 1998); EEO Management Directive 110, 5-4 (October 22,
1992).<3> We will therefore order the agency to include allegations (1),
(5) and (9) in its processing of appellant's continuing violation claim.
Regarding allegation (15), the counselor's report on appellant's earlier
complaint reveals that appellant raised this issue during the informal
stage of that complaint. The counselor later explained to appellant
that both the men's and women's locker rooms were open to public access.
The report further indicated that appellant accepted the agency's
explanation and decided not to pursue the matter further. Appellant
has not presented any documents or testimony indicating otherwise.
Accordingly, we find that the agency properly dismissed this allegation.
Finally, with respect to allegation (16), one of the allegations raised
with the counselor in the earlier complaint was the denial of overtime
on two occasions. Appellant did not specify the dates on which the
supervisor denied appellant's request for overtime. Since appellant first
brought this issue to a counselor's attention in September 1992, however,
we can presume that those incidents occurred before then. The overtime
allegation was never resolved in the earlier complaint, which was
dismissed pursuant to 29 C.F.R. � 1614.107(g). In allegation 16,
appellant appears to be claiming that her supervisor denied requests for
overtime that she made September, 1992 and January 7, 1993. The incidents
described in allegation 16 are separate and distinct from the incidents
raised in the dismissed complaint. As with allegations (1), (5) and (9),
allegation (16) concerns incidents of on-going discriminatory harassment
rather than separate or isolated acts of discrimination. Consequently,
we will order the agency to include allegation (16) in its processing
of appellant's continuing violation claim.
CONCLUSION
After a review of appellant's request to reconsider, the previous
decision, and the entire record, the Commission finds that appellant's
request meets the criteria of 29 C.F.R. �1614.407(c). It is
therefore the decision of the Commission to GRANT appellant's request.
The decision of the Commission in EEOC Appeal No. 01954824, affirming
the agency's dismissal of allegations (3) through (15) is affirmed only
with respect to allegation (15). The agency's final decision dated May
18, 1995, which did not address allegations (1), (2) and (16) and which
rejected the remaining allegations is REVERSED with respect to allegations
(3) through (14) and AFFIRMED with respect to allegation (15). The agency
shall investigate allegations (1) through (14), and (16) in accordance
with our order below. There is no further right of administrative appeal
from a decision of the Commission on a request for reconsideration.
ORDER (E1092)
The agency shall process allegations (1) through (14) and (16), as part
of appellant's continuing violation claim, in addition to the allegations
that it had accepted in its final decision letter dated May 16, 1995.
The agency shall conduct its investigation of these 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� (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.
RIGHT TO FILE A CIVIL ACTION (Q0993)
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. 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 1, 1998
_______________ ______________________________
Date Frances M. Hart
Executive Officer
1By letter dated September 18, 1996, the Commission granted appellant an
extension until November 29, 1996, to submit her request for
reconsideration. Appellant filed her request on November 15, 1996, as
evidenced by the postmark. Her request is therefore timely.
2The counselor's report dated July 15, 1994 sets forth March 16, 1994 as
the date that appellant initially contacted an EEO counselor. However,
a memorandum confirming a telephone conversation between the agency's
EEO officer and appellant's representative indicates that appellant may
have actually requested counseling on February 8, 1994. The agency's
acceptance of a continuing violation claim covering the period between
August 17, 1993 and January 7, 1994 reflects the agency's belief that
appellant's contact with a counselor was timely with respect to the
accepted issues.
3The investigation shall include a thorough review of the circumstances
under which the alleged discrimination occurred, including any policies
or practices which may constitute or appear to constitute discrimination,
even though they have not been expressly cited by the complainant.