01995801
03-26-2001
Wanda A. Rhea, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Wanda A. Rhea v. Department of the Navy
01995801
03-26-01
.
Wanda A. Rhea,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01995801
Agency No. 9931698001
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision, 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. Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1) and (2). ISSUES PRESENTED
The issues presented here in are:
1) whether the agency properly dismissed complainant's formal EEO
complaint for failure to seek EEO counseling in a timely manner, as to
allegations (2) and (3); and
2) whether the agency properly dismissed complainant's complaint for
failure to state a claim, as to allegations (1), (2), (4) and (5).
BACKGROUND
Complainant filed a formal complaint on January 5, 1999 in which she
alleged discrimination on the bases of race (Black), color (Black)
and sex when:
(1) she received an Outstanding (Level 5) Performance Appraisal for the
period ending June 30, 1998, and the Second Level Supervisor block was
signed by an employee she did not believe was in her chain of command;
(2) the Administrative Officer, GS-15, position (PD# 4I66002001) was
abolished on October 24, 1997, and a Special Assistant for Administrative
Matters, GS-13, position (PD# 4I70704001) was created on October 12,
1997;
(3) she was not selected for the Special Assistant for Administrative
Matters, GS-301-13, position on October 12, 1997;
(4) Performance Standards for the period July 1, 1998 through June 30,
1999 were so finite that they were unachievable; and
(5) she was denied access to the personnel files of civilian employees
for whom she had supervisory authority.
In its final decision, the agency dismissed allegation (2), abolishment
of the position of Administrative Officer on October 24, 1997, and
allegation (3), non-selection for the position of Special Assistant
for Administrative Matters on October 12, 1997, for failure to contact
an EEO Counselor in a timely manner. See 29 C.F.R. 1614.105(a)(2).
The record indicates that complainant sought EEO Counseling on August 18,
1998, over ten months after the alleged incidents occurred. The agency
also dismissed allegations (1), (2), (4) and (5) for failure to state a
claim, concluding that complainant failed to show she was aggrieved. See
29 C.F.R. � 1614.107(a)(1). In the alternative, the agency dismissed
allegation (4) as a preliminary step to taking a personnel action.<1>
See 29 C.F.R. � 1614.107(a)(5). It is from that decision that complainant
appeals.
ANALYSIS AND FINDINGS
Allegations (2) and (3)
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires agencies to dismiss
a complaint or a portion of a complaint which fails to comply with the
time limitations set forth in 29 C.F.R. � 1614.105(a). An aggrieved
person is required to initiate contact with an EEO 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. See 29 C.F.R. � 1614.105(a)(1).
In the present case, allegation (2) occurred on October 24, 1997, and
allegation (3) occurred on October 12, 1997. The record indicates that
complainant sought EEO Counseling on August 18, 1998, over ten months
after the alleged incidents occurred. Therefore, complainant's EEO
Counselor contact as to allegations (2) and (3) is untimely, unless she
can show that the allegations were part of a continuing violation.
The Commission has held that the time requirement for contacting an EEO
Counselor can be waived as to certain allegations within a complaint
when the complainant alleges a continuing violation, that is, a series
of related discriminatory acts, one of which falls within the time
period for contacting an EEO Counselor. See Howard-Grayson v. United
States Post Office, EEOC Request No. 05990160 (December 3, 1999).
If one or more acts fall within the time period for contacting an
EEO Counselor, the complaint is timely with regard to all acts that
constitute a continuing violation, provided the acts are interrelated
by a common nexus. See Meaney v. Dept. of the Treasury, EEOC Request
No. 05940169 (November 30, 1994); Verkennes v. Dept. of Defense, EEOC
Request No. 05900700 (September 21, 1990).
We find that complainant has failed to establish a continuing
violation. Although some of complainant's allegations fall within
the time period for contacting an EEO Counselor, the abolition of the
Administrative Officer position, the creation of the Special Assistant
for Administrative Matters position and complainant's non-selection
for the Special Assistant for Administrative Matters position were not
related to those other timely allegations. Instead, allegations (2) and
(3) were discrete acts which had sufficiently permanent consequences,
requiring that complainant assert her EEO rights at the time the events
occurred. Furthermore, the record indicates that these allegations
involved different agency officials. The Commission finds allegations
(2) and (3) are discrete events, and therefore, do not constitute a
continuing violation. Meaney, supra. For the reasons set forth above,
the agency properly dismissed complainant's allegations (2) and (3)
for failure to seek EEO counseling in a timely manner.
Allegations (1), (4) and (5)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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.
The Commission's federal sector case precedent has long defined an
"aggrieved employee" as one who suffers 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).
Complainant alleged that allegations (1), (4) and (5) constituted
unlawful harassment. Unless the conduct is severe, however, a single
incident or a group of isolated incidents will not be regarded as
creating a discriminatory work environment. See James v. Department
of Health and Human Services, EEOC Request No. 05940327(September 20,
1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982).
In the instant complaint, we find that complainant failed to show that
she suffered harm with respect to the terms, conditions or privileges of
her employment as a result of the incidents identified in allegations
(1), (4) and (5). Even when viewed within the context of each other
and in a light most favorable to complainant, (1), (4) and (5) are
too isolated and insufficiently severe to establish a hostile work
environment. Consequently, (1), (4) and (5) were properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
CONCLUSION
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__03-26-01________________
Date
1Since we are affirming the agency's dismissal
of allegation (4) for failure to state a claim, we will not address the
agency's alternative grounds for dismissal.