01986758
08-24-1999
Zetta L. West, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.
Zetta L. West v. Environmental Protection Agency
01986758
August 24, 1999
Zetta L. West, )
Appellant, )
)
v. ) Appeal No. 01986758
) Agency No. 98-0051-R5
Carol M. Browner, )
Administrator, )
Environmental Protection Agency, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's August 12, 1998
decision dismissing a portion of appellant's complaint. The agency
dismissed the following allegations for untimely EEO Counselor contact:
1(a). On October 23, 1997 appellant's supervisor gave appellant an unfair
performance rating and dismissed appellant's questions related to the
rating.
1(b). On October 28, 1997, appellant met with her supervisor and the Chief
(approving official) to discuss the performance rating. On October 29,
1997 appellant had a follow-up meeting with the Chief and was informed
that he supported the rating.
1(c). On October 29, 1997 appellant met with the Director to discuss the
performance rating. On October 31, 1997 appellant received a memorandum
from the Director referring appellant to the Union on the rating.
The agency also dismissed allegation 1(c) and the following allegations
for failing to state a claim:
In November 1997 the Chief observed appellant and another African American
coworker going to the elevator. The Chief asked appellant's supervisor
to inquire where appellant and the coworker were going and appellant's
supervisor told the Chief that he assumed appellant was going on break.
The Chief told appellant's supervisor to make sure he observed appellant
and the coworker's lunch time. Since that time (almost every day)
appellant's supervisor stands at the reception area at the time of
appellant's lunch break. White employees are allowed to take extended
lunches and breaks. Appellant has never seen the supervisor standing
in the reception area when his White employees leave for lunch.
4(a). On several occasions the Chief followed appellant and an African
American coworker. For example, on February 3, 1998 the Chief followed
appellant and an African American coworker on the elevator or escalator
back to appellant's work station.
4(b). On February 3, 1998 the Chief observed appellant and an African
American coworker on the 2nd floor of appellant's office building.
The Chief followed appellant down the escalator, through the security
check area and to the elevator in order to make sure appellant was
returning to her work station.
On February 3, 1998 the Chief approached appellant during a meeting with
other African American staff to ask appellant if the discussion was work
related.
Allegations 1(a) - 1(c)
The Commission finds that allegations 1(a) - 1(c) are really one
allegation alleging that appellant was given a discriminatory appraisal on
October 23, 1997. Allegations 1(b) and 1(c) are not separate allegations,
but rather are part of allegation 1(a). Therefore, we find that the
agency improperly dismissed allegation 1(c) for failing to state a claim.
The agency shall treat allegation 1 as one allegation.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must contact an EEO Counselor within 45 days of the matter alleged
to be discriminatory. The 45 day time limit shall be extended when the
individual shows that he was not notified of the time limits and was
not otherwise aware of them or that he did not know and reasonably
should not have known that the discriminatory matter occurred.
29 C.F.R. �1614.105(a)(2).
Appellant did not raise allegation 1 with an EEO Counselor until
December 18, 1997, which is more than 45 days after appellant should have
reasonably suspected discrimination regarding the appraisal. On appeal
appellant argues that she was unaware of the time limits for contacting an
EEO Counselor. Although the agency claims on appeal that appellant was
aware of the EEO procedures because the agency posted and made available
information about the complaint process, the record does not contain
any evidence showing that appellant had actual or constructive notice
of the time limits for contacting an EEO Counselor more than 45 days
prior to her initial EEO Counselor contact. For instance, the record
does not contain a copy of the referenced poster or any affidavit from
an appropriate agency official stating when and where the information on
the time limits was posted. Therefore, we shall remand allegation 1 so
that the agency may supplement the record with evidence showing whether
appellant had actual or constructive knowledge of the time limit for
contacting an EEO Counselor more than 45 days prior to her contact of
an EEO Counselor.
Allegations 3, 4(a), 4(b), and 5
The Commission finds that allegations 3, 4(a), 4(b), and 5 should not
be examined individually; rather, these allegations should have been
examined as a claim of harassment. Appellant explains on appeal that the
harassment she has been subjected to includes the following examples:
routinely watched by superiors; routinely followed by superiors;
and being asked by supervisors whether any discussions with coworkers
are work related. The Commission finds that appellant has correctly
summarized this harassment allegation and that these incidents, when
combined, are sufficient to state a claim of a hostile work environment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(Mar. 13, 1997). On remand the agency shall treat allegations 3, 4(a),
4(b), and 5 as one claim of harassment.
The agency's decision dismissing allegation 1 (as defined in this
decision) is VACATED and we REMAND allegation 1 to the agency for further
processing in accordance with this decision and applicable regulations.
The agency's decision dismissing allegations 3, 4(a), 4(b), and 5 is
REVERSED and we REMAND these allegations, as redefined in this decision
as one harassment allegation, to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER
The agency shall investigate the issue of, and supplement the record with
evidence showing, whether appellant had actual or constructive knowledge
of the time limit for contacting an EEO Counselor more than 45 days before
she contacted an EEO Counselor regarding allegation 1. The agency shall
redetermine whether appellant timely contacted an EEO Counselor regarding
allegation 1. Within 60 days of the date this decision becomes final
the agency shall either issue a letter to appellant accepting allegation
1 for investigation or issue a new decision dismissing allegation 1.
A copy of the letter accepting allegation 1 or new decision dismissing
allegation 1 must be sent to the Compliance Officer as referenced herein.
The agency is ORDERED to process the remanded harassment allegation
(previously treated by the agency as allegations 3, 4(a), 4(b), and 5)
in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded harassment allegation
within 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 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 60 days of receipt of appellant's request. A copy of
the agency's letter of acknowledgement 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� (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:
August 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations