01982688
03-05-1999
Susan A. Goldblatt, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, ______________________________)
Susan A. Goldblatt, )
Appellant, )
)
v. ) Appeal No. 01982688
) Agency No. DOT-1-98-1031
Rodney E. Slater, )
Secretary, )
Department of Transportation, ) Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency improperly
dismissed allegation 1 for failure to state a claim, but properly
dismissed allegation 2 for failure to establish a claim of a continuing
violation.
In allegation 1, appellant contends that she was discriminated against on
the basis of sex (female) when her supervisor reprimanded her publically
and would not allow her to speak at a staff meeting on October 7, 1997.
Concerning allegation 2, the appellant contends that she has set forth a
chronicle of incidents which demonstrate sex discrimination over a long
period of time, and that such events constitute a continuing violation,
when the agency accepted a third issue alleging sex discrimination
concerning agency leave procedures.
Allegation 1
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who experiences a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
Appellant alleges that her supervisor improperly prevented her from
participating in a staff meeting and publically reprimanded her in
view of her co-workers. She contends that this conduct diminished her
ability to work effectively with her male co-workers and precluded
her from participating in a discussion regarding administrative
travel restrictions, which is an important aspect of her employment.
Appellant further alleges that male workers are treated more fairly
overall by her supervisor, further noting that
exclusion of female input at meetings is �common� due to her supervisor's
perception that female workers cannot �say things the right way.�
The appellant's job involves a significant amount of travel time.
Therefore, discussion of, and decisions about, administrative travel
restrictions at a staff meeting clearly affect a condition of employment.
In fact, the ability to freely participate at staff meetings, regardless
of the topic under discussion, is an important condition of employment.
Thus, we find that allegation 1 is sufficient to allege �present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy,� and to render her an �aggrieved employee�
within the meaning of the law cited above. Accordingly, allegation 1
must be VACATED and REMANDED to the agency for investigation.
Allegation 2
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 McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. 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).
Relevant to the determination are whether the acts were recurring or
were more in the nature of isolated employment decisions; whether an
untimely discrete act had the degree of permanence which should have
triggered an employee's awareness and duty to assert
his or her rights; and whether the same agency officials were involved.
Woljan v. Environmental Protection Agency, EEOC Request No. 05950361
(October 5, 1995).
Further, 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. Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
In allegation 2, the appellant sets forth a lengthy chronicle of events
describing discriminatory conduct by her supervisor, dating from February
1996, to December 1996. Many of these accounts include a description
of how the appellant thought she was treated differently than male staff
members. The appellant contends that this 1996 chronicle of events is part
of the same pattern of sex discrimination alleged in both allegation 1
and her third allegation which was accepted by the agency. She alleges
that this pattern constitutes a continuous violation and that her entire
complaint should be accepted and investigated under this theory.
Appellant states that she did not realize at that time that she was the
victim of sex discrimination, only that she was being mistreated. However,
in reviewing her chronicle, it would appear that the appellant did
suspect sex discrimination while the events were occurring. Appellant
makes frequent references as to how she alone, and also she and a female
co-worker together, were treated unfairly during this period, observing
that male staff members were not treated in the same manner. In fact,
the �MID-LATE OCTOBER 1996" entry indicates that sex discrimination by
the supervisor was discussed in a meeting with him, appellant, and the
other female co-worker; and, the �08-10 OCTOBER 1996" entry reveals
that appellant discussed her concerns about her supervisor's conduct,
including sex discrimination, with a more senior supervisor. However,
the appellant did not initiate the EEO process to address this situation
until November 1997.
Moreover, the appellant does not allege any additional incidents of
sex discrimination, by her supervisor dating from December 1996, until
approximately September 1997, which is the date of appellant's third
allegation concerning leave procedures which was accepted by the agency.
Thus, there is an approximately nine month gap between the alleged
discriminatory incidents which the appellant does not address.
Based on the law cited above, we find that these circumstances preclude
the finding of a claim for a continuing violation. First, it is clear
that the appellant either knew or suspected that her supervisor's
conduct was motivated by sex discrimination as early as October 1996,
requiring her to initiate the EEO process at that time pursuant to 29
C.F.R. �1614.105(a)(1). Secondly, the required �nexus� between the
1996 chronicle of incidents and the 1997 allegations has not been
demonstrated due to the time gap between these events. Therefore,
a continuing violation claim cannot be sustained under these facts,
and the dismissal of allegation 2 is AFFIRMED.
In conclusion, we AFFIRM the FAD in part with respect to allegation 2,
and we VACATE the FAD in part and REMAND allegation 1 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. �1614.10.
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.
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.F.R.).
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:
March 5, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations