01980515
10-01-1998
Rose O. Hayes, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rose O. Hayes, )
Appellant, )
)
v. ) Appeal No. 01980515
) Agency No. HO-0036-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
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. Appellant received the final agency decision
on September 25, 1997. The appeal was postmarked October 22, 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 on appeal are whether the agency properly dismissed allegations
3-15 of appellant's complaint on the grounds that appellant failed to
contact an EEO Counselor in a timely manner and allegations 3-5, and 7
on the grounds of failure to state a claim.
BACKGROUND
Appellant initiated contact with an EEO Counselor on October 4, 1996.
In a formal EEO complaint dated February 18, 1997, appellant alleged
that she had been discriminated against and subjected to harassment on the
bases of her sex (female) and in reprisal for previous EEO activity when:
1. She became aware on August 23, 1996, that an EAS-25 position, Program
Manager, Human Factors Engineering, was created and awarded to a male
engineer thereby denying her the opportunity to compete for this position.
2. On December 13, 1996, she received a merit performance rating of
"Met Objectives/Expectations."
3. She was informed in March 1996, that her position of Ergonomist was
being transferred to Systems/Process Integration (SPI).
4. In mid-March 1996, one of the engineers openly referred to her as
"Herr [appellant]" during a meeting with no reproach from the Manager.
5. In 1992, she was required to bid on her EAS-23 position and was not
informed there was an EAS-25 position for which she was qualified and
for which she could have applied.
6. The agency failed to upgrade her position to a EAS-25 level in 1990.
7. She was subjected to a sexually hostile work environment during 1988.
8. On February 12, 1985, she was not selected for the position of
Program Manager, Engineering Psychologist.
9. In 1984-85, she was not selected for the position of Industrial
Engineer, Principal Program Engineer, EAS-25.
10. In 1983-84, she was not selected for the position of Program Manager,
Engineering Psychologist, EAS-24.
11. In 1983, she was not selected for the position of Program Director,
Ergonomics Systems Research, EAS-25.
12. In 1983, she was not selected for the position of Industrial Engineer,
Principal Program Engineers, EAS-25.
13. In January 1983, she was not selected for the PCES Candidate List.
14. She was not allowed to serve as Acting Branch Manager during 1982-83.
15. In 1982, she was not selected for the position of Manager, Safety
and Health Branch, Western Region.
In its final decision, the agency dismissed allegations 3-15 of
appellant's complaint on the grounds of failure to contact an EEO
Counselor in a timely manner. The agency determined that appellant's
EEO contact on October 4, 1996, was after the expiration of the 45-day
limitation period. The agency concluded that appellant should have had
a reasonable suspicion of discrimination with regard to allegations 8-15
long before she contacted an EEO Counselor. With regard to appellant's
claim of a continuing violation, the agency determined that appellant
should have had a reasonable suspicion of discrimination as to the
alleged incidents covering the years 1982 through 1985. The agency
noted that many of the alleged incidents involved nonselections and that
since nonselections have a definite conclusion, they do not fit within
the criteria of a continuing violation. The agency noted that many
different agency officials were involved in the alleged incidents and,
therefore, a nexus does not exist between the dismissed allegations and
those allegations accepted for investigation. With regard to appellant's
position that she was unaware of the relevant limitation period for
contacting an EEO Counselor, the agency stated that until February 1996,
appellant worked at agency Headquarters where her office was situated
next to the national office of EEO Compliance and Appeals, EEO Complaints
Processing. According to the agency, posters explaining how to contact
an EEO counselor and the requisite time limit were prominently posted
on the bulletin board outside of the Headquarters Personnel Office for
over twenty years. With regard to the allegations that were dismissed
on the grounds of failure to state a claim, the agency determined that
appellant failed to establish how she was harmed. In terms of allegation
7, the agency noted that the alleged harasser had left the agency and
there was no longer a present unresolved harm or loss. Allegations 1-2
were accepted for investigation.
On appeal, appellant argues that the dismissed allegations are timely
based on the continuing violation theory. Appellant maintains that the
entire complaint concerns her being subjected to a pattern and practice
of sex discrimination and/or retaliation and harassment. Specifically,
appellant states that the complaint relates to the agency's efforts to
prevent appellant's career growth by taking away her titles, promoting
unqualified males ahead of her, and by harassing her. According to
appellant, the reorganization of her job duties and the hostility
she encountered upon her arrival in the Systems/Process Integration
Department, as reflected in allegations 3 and 4, respectively,
are interrelated with the accepted allegations because they are
reflective of appellant being subjected to a pattern and practice
of sex discrimination and a hostile environment in her new position.
Appellant contends that allegation 5 is related to allegation 1 in that
they concern the same EAS-25 position. Appellant states that she did
not become aware that this position was created in 1992, until August
1996. According to appellant, the agency concealed the creation of the
position from her and told her that the only position she could bid on
was her then current position at the EAS-23 grade. Appellant argues
that the failure to upgrade her position as set forth in allegation 6
is interrelated with not being allowed to bid on the EAS-25 job in 1992.
Appellant claims that the sexual harassment referenced in allegation 7 is
interrelated with her not being allowed to bid on the EAS-25 position as
these allegations are relevant to her claim that she has been subjected to
a pattern and practice of sex discrimination. As for allegations 8-15,
appellant contends that the various nonselections are interrelated with
the allegation that she was not allowed to bid on the EAS-25 position.
Appellant also claims that she was not aware of the applicable time period
for contacting an EEO Counselor. With regard to those allegations that
were dismissed on the grounds of failure to state a claim, appellant
argues that her transfer, the removal of her title, and her placement
in a hostile work environment rendered her aggrieved.
In response, the agency states that the central issue in the complaint is
that during August 1996, appellant learned that an EAS-25 level position
was created during the 1992 restructuring and that appellant was not
afforded the opportunity to compete for the position. According to
the agency, appellant's continuing violation argument focuses on this
allegation and its connection with appellant's placement under a male
Industrial Engineer with allegedly no ergonomics qualifications in August
1996. The agency notes that this individual was the same individual who
was selected in 1992, for the level EAS-25 position for which appellant
was allegedly kept from applying. The agency asserts that there is no
way a reasonable person could not have known or suspected that she had
been discriminated against during the 1992-96 period with regard to the
EAS-25 selection in 1992. The agency further argues that appellant
has not established how she was aggrieved by her placement under a
male engineer. The agency maintains that appellant is challenging the
lateral reassignment of the male engineer to the Program Manager position
by claiming that she was unaware that this individual was selected to
an EAS-25 Team Leader position during 1992.
ANALYSIS AND FINDINGS
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.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (September
12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988).
The Commission has held that information in an EEO Counselor's report
regarding posting of EEO information was inadequate to support application
of a constructive notice rule. Pride v. United States Postal Service,
EEOC Request No. 05930134 (August 19, 1993) (citing Polsby v. Shalala,
113 S.Ct. 1940 (1993). The Commission found in Pride that the agency had
merely made a generalized affirmation that it posted EEO information. Id.
The Commission found that it could not conclude that appellant's contact
of an EEO Counselor was untimely without specific evidence that the
poster contained notice of the time limit. Id.
Appellant alleged that she was discriminated against over a period ranging
from 1982 to December 1996. Appellant did not initiate contact with an
EEO Counselor until October 4, 1996. Appellant contends that she lacked
knowledge of the applicable time period for contacting an EEO Counselor.
Although the agency maintains that posters explaining how to contact an
EEO Counselor and the relevant time limits were prominently posted on the
bulletin board at appellant's work site, the record does not contain a
copy of the EEO posters that were allegedly on display and/or an affidavit
from an EEO Official attesting to their presence during the relevant time
period. Therefore, we find that the agency has not presented sufficient
evidence that EEO posters were on display, and/or that they contained the
appropriate time limit for initiating EEO contact, nor has the agency
otherwise refuted appellant's contention that she lacked knowledge
of the applicable limitation period for contacting an EEO Counselor.
Accordingly, the agency's decision to dismiss allegations 3-15 of
appellant's complaint on the grounds of untimely contact is VACATED.
These allegations are hereby REMANDED for further processing pursuant
to the ORDER below.
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).
Upon review, we find that many of appellant's allegations involve
discrete, isolated acts which should have triggered appellant's awareness
of any alleged discrimination. Specifically, we find that the following
acts were sufficiently discrete as to have triggered appellant's duty
to initiate EEO contact: appellant was informed that her position
of Ergonomist was being transferred to Systems/Process Integration
(allegation 3); her position was not upgraded to an EAS-25 level in
1990 (allegation 6); she was not selected for the position of Program
manager, Engineering Psychologist on February 12, 1985 (allegation 8);
she was not selected for the position of Industrial Engineer, Principal
Program Engineer, EAS-25, in 1984-85 (allegation 9); she was not selected
for the position of Program Manager, Engineering Psychologist, EAS-24,
in 1983-84 (allegation 10); she was not selected for the position of
Program Director, Ergonomics Systems Research, EAS-25, (allegation 11);
she was not selected for the position of Industrial Engineer, Principal
Program Engineers, EAS-25, in 1983 (allegation 12); she was not selected
for the PCES Candidate List in January 1983 (allegation 13); she was not
allowed to serve as Acting Branch Manager during 1982-83 (allegation 14);
she was not selected for the position of Manager, Safety and Health
Branch, Western Region (allegation 14). We find that these acts were
completed acts at the time they occurred, and that they do not constitute
a continuing violation.
With regard to allegation 4, we find that appellant has not established
a common nexus between being referred to as "Herr" and the accepted
allegations of not being allowed to compete for a position and receiving
a merit performance rating of "Met Objectives/Expectations." As for
allegation 7, we find that appellant's claim that she was subjected
to a hostile work environment during 1988, is a matter where appellant
should have had a reasonable suspicion of discrimination long before her
contact of an EEO Counselor in October 1996. With respect to allegation
5, we are not persuaded that appellant lacked a reasonable suspicion of
discrimination as to the creation of a level EAS-25 position during the
1992 restructuring. In reaching this finding, we note that four years
passed from when appellant was allegedly denied the opportunity to compete
for the EAS-25 position to appellant's contact with an EEO Counselor.
We find that allegations 4, 5, and 7 do not meet the criteria of a
continuing violation.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination 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 40 years of age) and the Rehabilitation Act (discrimination on the
basis of disability) shall be processed in accordance with Part 1614 of
the EEOC Regulations. To establish standing as an "aggrieved employee"
within the context of 29 C.F.R. �1614.103, appellant must allege, first
of all, that she has been injured in fact. Hackett v. McGuire Bros.,
445 F.2d 447 (3rd Cir. 1971). Specifically, appellant must allege some
direct harm which affects a term, condition, or privilege of employment.
See Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972).
The only proper questions in determining whether an allegation is within
the purview of the EEO process are whether the complainant is an aggrieved
employee and whether she has alleged employment discrimination covered
by the EEO statutes. An employee is "aggrieved" if she has suffered
direct and personal deprivation at the hands of the employer. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
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.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
In determining whether allegations 3, 4, 5, and 7 of appellant's complaint
state a claim, we must take into account that appellant claims all of
the alleged incidents of her complaint form a pattern of harassment.
We find that appellant is alleging a pattern of harassment due to
her sex and in reprisal for her previous EEO activity. By alleging a
pattern of harassment, appellant has stated a cognizable claim under
the EEOC Regulations. See Cervantes v. United States Postal Service,
EEOC Request No. 05930303 (November 12, 1993). Accordingly, the agency's
decision to dismiss allegations 3, 4, 5, and 7 of appellant's complaint
on the grounds of failure to state a claim was improper and is REVERSED.
CONCLUSION
The agency's dismissal of allegations 3-15 on the grounds of untimely EEO
contact is hereby VACATED for the reasons set forth herein. The agency's
dismissal of allegations 3, 4, 5, and 7 on the grounds of failure to
state a claim is hereby REVERSED. Allegations 3-15 are hereby REMANDED
to the agency for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
The agency is ORDERED to conduct a supplemental investigation with
regard to the issue of when appellant had actual or constructive notice
of the time limit for contacting an EEO Counselor. The agency shall
gather any evidence necessary to show whether and when appellant had
actual knowledge or was put on constructive notice of the time limit for
contacting an EEO Counselor. The agency shall make a determination as
to whether appellant contacted an EEO Counselor in a timely manner after
she had actual or constructive notice of the time limit for contacting
an EEO Counselor. If an EEO poster was displayed at appellant's work
facility during the relevant period, then the agency shall supplement the
record with a copy of the EEO poster. The agency shall, within thirty
(30) calendar days of the date this decision becomes final, issue a new
final decision with regard to allegations 3-15 or notify appellant of
the processing of these allegations.
A copy of the new final agency decision or notice of processing 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:
October 1, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations