01974328
05-27-1999
Roxanne Girard, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Roxanne Girard v. Department of the Treasury
01974328
May 27, 1999
Roxanne Girard, )
Appellant, )
)
)
v. ) Appeal No. 01974328
) Agency No. 97-1135
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
Appellant filed the instant appeal from a decision dated April 9,
1997, dismissing part of appellant's complaint pursuant to 29 C.F.R.
�1614.107(b) for failing to contact an EEO counselor within the prescribed
time limits.
Appellant alleged in her complaint that she was discriminated against
based on reprisal when, first, on May 14, 1996, she was reassigned from
the Comptroller's office to the Examiner View Project and then on October
14, 1996, she was issued a one-day suspension. Appellant alleges that
these actions were taken against her because she rejected the sexual
advances of her former supervisor. Appellant first contacted an EEO
counselor on November 6, 1996.
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 forty-five (45) days of the effective date of
the action. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the
forty-five (45) day limitation period is triggered. See Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
The agency dismissed appellant's May 14, 1996, allegation for untimely
counselor contact since she did not contact a counselor within the 45
day prescribed time limit. However, appellant alleges that the events
are part of a pattern and practice of retaliation and constitute a
continuing violation. Therefore, appellant alleges that her counselor
contact is not untimely and the agency should accept both allegations
for investigation.
The Commission has held that the time limit for contacting an EEO
Counselor may be waived as to certain allegations within a complaint if a
continuing violation is demonstrated. Guy v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994); Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989). To state a
claim for a continuing violation, a complainant must allege a series of
related acts, one or more of which falls within the limitations period.
Williams v. Department of Defense, EEOC Request No. 05920506 (August
25, 1992). The essential component of a continuing violation claim is
a theme that unites the employer's acts into one continuous pattern of
discrimination. Jackowski v. Department of the Air Force, EEOC Request
No. 05930862 (May 19, 1994).
Among the factors to be considered in determining whether such a theme has
been shown are whether the same officials are involved and whether the
incidents are of a similar nature. Verkennes v. Department of Defense,
EEOC Request No. 05900700 (September 20, 1990). We will also consider
the degree of permanence of the alleged discriminatory acts: an act
has a degree of permanence sufficient to defeat a continuing violation
claim if it triggers an employee's awareness of and duty to assert his
or her rights, or if it indicates to the employee that continued adverse
consequences are to be expected from the act, regardless of whether
there is a continuing intent to discriminate. Rowan v. Department of
Transportation, EEOC Request No. 05940661 (February 24, 1995) (quoting
Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983)). Thus,
a complainant who believes that he or she has been discriminated against
must contact an EEO Counselor promptly, as opposed to a complainant who is
unable to appreciate that he or she is being discriminated against until
a series of acts makes the discrimination clear. Evens v. Environmental
Protection Agency, EEOC Request No. 05930226 (September 7, 1993) (citing
Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33,
921 F.2d 396 (1st Cir. 1990)).
Therefore, the issue before this Commission is whether the requisite
interrelatedness exists between the timely and untimely allegations made
by appellant. Without a substantial relationship between the timely
and untimely claims, they cannot be viewed as a continuing violation.
Sabree v. United Broth. Of Carpenters and Joiners, 921 F.2d 396, at 401
(1st Cir. 1990).
The record indicates that appellant's second allegation concerning the
suspension on October 14, 1996, is timely. In addition, appellant has
alleged facts sufficient to show that both allegations involve the same
supervisor. However, in considering the permanence of the actions taken
against appellant, the Commission finds that the agency's determination
that a continuing violation did not exist was proper.
The first action taken against appellant was a reassignment on May 14,
1996. Appellant's reassignment had a degree of permanence that should
have triggered appellant's awareness of discrimination. See Simeone
v. Department of the Navy, EEOC Request No. 05930973 (Jan. 25, 1994)
(The previous decision further observed that the reassignment and the
performance evaluation had a degree of permanence which should have
triggered appellant's awareness of the duty to assert her rights under
Title VII.) Therefore, a continuing violation does not exist and
appellant should have contacted an EEO counselor in a timely manner
concerning this allegation.
On appeal, appellant argues that she did in fact contact the agency's EEO
office in the summer of 1996 to discuss her May 14, 1996, reassignment.
Appellant argues that at that time she was told to check an electronic
bulletin board to see what her rights were; however, she never found
the board. The agency did not discuss this argument and acknowledged
appellant's counselor contact as November 6, 1996, therefore finding
her May 14, 1996, allegation untimley for counselor contact.
Although a continuing violation does not exist in this case, if appellant
contacted an EEO counselor within the prescribed time limits for each
allegation, both allegations would be timely. Therefore, the Commission
finds that a supplemental investigation must be done by the agency
to determine if appellant attempted to contact a counselor within the
prescribed time limits for her allegation concerning the May 14, 1996,
reassignment.
Accordingly, the agency's final decision dismissing appellant's May 14,
1996, reassignment allegation is VACATED and allegation (1) is REMANDED
for further processing in accordance with this decision and applicable
regulations.
ORDER
The agency is ORDERED to conduct a supplemental investigation and obtain
affidavits from the appellant and relevant agency officials to determine
the date of appellant's counselor contact. The agency shall supplement
the record with any relevant evidence addressing whether appellant
contacted an EEO Counselor within 45 days of May 14, 1996. Thereafter,
the agency shall either accept allegation (1) for processing or issue
a new final decision dismissing allegation (1). The issuance of a new
final decision or letter accepting allegation (1) must be issued within
sixty (60) days of the date this decision becomes final.
A copy of the agency's letter of acceptance or the new final decision
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:
May 27, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations