01981870
10-15-1998
Megan S. McAveney, Appellant, v. George J. Tenet, Director, Central Intelligence Agency.
Megan S. McAveney v. Central Intelligence Agency
01981870
October 15, 1998
Megan S. McAveney, )
Appellant, )
)
v. ) Appeal No. 01981870
) Agency No. 98-04
George J. Tenet, )
Director, )
Central Intelligence Agency. )
Agency. )
)
DECISION
On December 31, 1997, the appellant filed an appeal from a final decision
of the agency dated December 2, 1997 concerning her complaint of unlawful
employment discrimination in violation of �501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. The appeal is timely (see
29 C.F.R. �1614.402(a)), and it is accepted under 29 C.F.R. �1614.401.
ISSUES PRESENTED
Whether the agency (1) properly dismissed portions of the appellant's
complaint for failure to timely seek EEO counseling, (2) properly
dismissed a portion of the complaint for alleging that a proposal or
preliminary step to taking a personnel action was discriminatory, and
(3) whether the agency properly defined the complaint.
BACKGROUND
The appellant was hired effective October 16, 1996 as a part-time
contract employee, with a pay equivalent of GS-7, step 1. The term of
the contract was 13 months, subject to extension or early termination.
She commenced working in the Work and Family Center. From September 19,
1997 onward she worked in the General Counsel's Office. In November 1997
the appellant filed an EEO complaint alleging that she was discriminated
against on the basis of her disabilities (physical) when:
1. She was excluded from meetings on her ability to continue working,
2. she was required to report to a physical examination on July 2, 1997,
3. her medical condition was discussed with her supervisor by an agency
medical physician on or about July 2, 1997,
4. she was placed on administrative leave on July 3, 1997,
5. she was required to undergo additional medical examinations and
testing on July 15, 1997 and July 21, 1997 to August 7, 1997,<1>
6. she was denied an advocate of her choice at a meeting with management
on September 10, 1997 to discuss her return to work,
7. she was advised on September 10, 1997 that she was required to use
all her sick leave for the period she was sent home commencing on July 3,
1997,
8. she was advised on September 10, 1997 that she could not return to
work unless she agreed to various conditions of a return to work offer,
including wearing a helmet which she was later advised had to be worn
on all federal property because of her seizure disorder,
9. she was advised on September 10, 1997 that she only had 24 hours to
review the return to work offer,
10. upon returning to work on September 19, 1997, a project she had been
promised was already completed, and no research project materialized,
11. she was informed on September 19, 1997 that her employment contract
would not be extended,
12. she was not provided appropriate training and duties during the
entire course of her internship,
13. she did not receive a proper telephone vocal amplification device
until September 26, 1997.
The agency accepted allegations 1, 6, 7 and 9 for investigation.
It dismissed allegations 2, 3, 4, and 5 on the grounds that the appellant
failed to timely seek EEO counseling. The agency accepted allegations 8
and 10, but defined them more narrowly than set forth above. With regard
to allegation 12, the agency accepted for investigation "position(s)"
the appellant occupied within 45 days prior to her contact with an
EEO counselor.
The final agency decision did not address allegations 11 and 13.
The appellant noted this in her appeal, and in response the agency
acknowledged this and argued that allegations 11 and 13 should be
dismissed. It reasoned that allegation 11 alleged a proposal or other
preliminary step to taking a personnel action was discriminatory, and
that the appellant failed to timely seek EEO counseling with regard to
allegation 13.
On appeal, the appellant argues that the agency misdefined portions
of her complaint and improperly dismissed portions of her complaint.
In response to the appellant's appeal, the agency argues that its final
decision should be affirmed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with a counselor within 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.
However, 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the time limit when the complainant shows that
she was not notified of the time limit and was not otherwise aware of
it, that she did not know and reasonably should not have known that the
discriminatory event or personnel action occurred, that despite due
diligence she was prevented by circumstances beyond her control from
contacting the counselor within the time limit, or for other reasons
considered sufficient by the agency or the Commission. With regard to
determining when a complainant knew or should have known of alleged
discrimination, the Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine when
the limitation period is triggered under the EEOC Regulations. Ball
v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). The appellant sought EEO counseling on September 22, 1997.
Allegations 2, 5 and 13
With regard to allegation 5, the appellant clarified on appeal that the
agency required her to undergo a psychiatric examination on July 15,
1997, and psycho-neurological testing from July 21, 1997 to August 7,
1997. The agency's response to the appeal does not contest this. The
appellant's EEO counselor contact on Monday, September 22, 1997 was within
the 45 day time limit of the last day of this set of mental-neurological
fitness-for-duty examinations. 29 C.F.R. �1614.105(a)(1) and .604(d).
Moreover, the physical examination on July 2, 1997 was part of the above
series of fitness-for-duty examinations. Accordingly, we find that the
appellant timely sought EEO counseling with regard to allegations 2 and
5.<2>
With regard to allegation 13, the appellant sought EEO counseling within
45 days of the date she allegedly was still not provided with a reasonable
accommodation, allegation 13 is timely.
Allegations 3 and 4
The appellant argues that her allegations are timely under the continuing
violation rule. The 45 day time limit to seek counseling is subject
to extension under the continuing violation rule. To establish a
continuing violation, the appellant must show a series of related acts,
one or more of which falls within the limitations period. An essential
ingredient of a continuing violation is an analogous theme uniting the
alleged discriminatory acts of the employer into a continuous pattern.
Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989). An important factor in making a determination on
whether a series of acts are related is their degree of permanence which
should trigger an employee's awareness of and duty to assert 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 v. Board of
Supervisors, 715 F.2d 971, 981 (5th Cir. 1983).
In her complaint, the appellant is alleging a series of related acts,
i.e., a set of fitness-for-duty examinations that led to her being placed
on administrative leave. Allegation 3 is inextricably intertwined
with this. Further, one of the acts, i.e., a medical examination,
occurred within the limitations period. While the appellant expressed
dissatisfaction all along about being required to undergo fitness-for-duty
examinations, the record does not show that she had a reasonable suspicion
of discrimination with regard to the above matters outside the limitations
period.
Accordingly, we find the appellant timely sought EEO counseling with
regard to allegations 3 and 4.
Allegation 12
E-mails reflect that as early as June 1997, the appellant was complaining
to agency officials about assignments. In a July 2, 1997 e-mail the
appellant complained that the Work and Family Center was not a place
to learn new things and to be challenged to think and create new ideas.
This demonstrates that the appellant believed she was not being properly
developed with assignments and training by at least early July 1997.
The Commission finds that the agency properly dismissed a portion of
allegation 12 for untimeliness, and that the agency must investigate the
aspects of the allegation regarding assignments and training that occurred
commencing 45 days prior to the date the appellant sought EEO counseling.
Allegations 8 and 10
The agency defined these allegations too narrowly, and their proper
definitions are set forth above. These allegations are timely.
Accordingly, the agency shall accept for investigation allegations 8
and 10 as defined in this decision.
Allegation 11
The appellant sought EEO counseling on this issue, contending that
in September 1997 she was informed that her contract of employment
with the agency would cease on November 16, 1997. EEOC Regulation 29
C.F.R. �1614.107(e) provides in relevant part that an agency shall
dismiss a complaint or a portion thereof that alleges a proposal or
other preliminary step to taking a personnel action. The agency argues
that this allegation should be dismissed under the above regulation.
We disagree. The appellant alleged that the decision to terminate
her contract was made in September 1997, not that a proposal or other
preliminary step to do so was done at that time. The appellant did
not have to wait to seek EEO counseling until the effective date her
contract expired when the decision to let it expire was made earlier.
The counselor's report, which is dated November 24, 1997, indicated that
the appellant was no longer employed with the agency.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to MODIFY the final agency decision.
Specifically, the decision of the agency to dismiss allegations 2, 3, 4,
5, 11 and 13 is REVERSED, and the agency's definition of allegations 8,
10 and 12 are modified as set forth in this decision. The decision of
the agency to dismiss a portion of allegation 12 is AFFIRMED, as modified
herein.
ORDER
The agency is ORDERED to process the remanded allegations, as defined
in the body of this decision, in accordance with 29 C.F.R. �1614.108 and
instructions in this decision. The agency shall consolidate the remanded
allegations with the other allegations in her complaint. 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 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. 15, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations
1In her complaint, the appellant alleged these events occurred in July
1997. On appeal, she clarifies the precise dates. The record suggests
that the medical exams and tests referred to in allegations 2 and 3 were
fitness-for-duty exams.
2With regard to allegation 5, the appellant states on appeal for the
first time that the "final appointment in the imposed examination
process..." was on September 3, 1997, when she was given the results
of the exams. This appointment did not concern a required medical exam
or test, the subject of allegation 5. Accordingly, the Commission will
not address this appointment.