01982800_r
04-02-1999
Alice M. Shank, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Alice M. Shank, )
Appellant, )
)
v. ) Appeal No. 01982800
) Agency No. 96-0545-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
______________________________)
DECISION
On March 4, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated February 4, 1998, pertaining
to 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. In her complaint, appellant alleged that she was subjected to
discrimination on the bases of sex (female) and in reprisal for prior
EEO activity when:
In 1994, appellant was subjected to sexual harassment by her supervisor;
and
From January 1994 through July 1996, appellant was subjected to a
hostile work environment:
Appellant suffered from hostilities and deliberate exclusion from
job-related meetings; and
Supervisors made negative comments about appellant, such as, �when I'm
gone, make sure you tell [appellant] thanks for costing me my job,�
�everyone knows that [appellant] doesn't have any judgement or sense,�
and �tell [appellant] I'm going to lower her appraisal if she doesn't
stop spreading rumors.�
Appellant filed a formal complaint of discrimination on February 22, 1995,
Agency Number 95-0309-SSA, alleging that she had been denied promotions
because of her prior EEO activity. The agency accepted the allegations
for investigation, and on July 10, 1995, appellant asked the investigator
to expand his investigation to include allegations of sexual harassment.
The investigator, through a letter dated July 6, 1995, explained that
although he could add bases to a complaint, he could not add allegations.
Appellant then requested that the Administrative Judge (AJ) extend the
complaint to include the harassment allegations. The AJ, in a Prehearing
Memorandum and Order dated May 31, 1996, refused to add the allegations,
but remanded them to the agency for EEO counseling.
In the meantime, according to the agency, appellant attended counseling
for non-selection for another promotion, and for hostile work environment
harassment (for being excluded from meetings, and for male supervisors
refusing to speak to her). Appellant filed a formal complaint on these
allegations on June 13, 1996, Agency Number 96-0281-SSA, and the agency
accepted both allegations for investigation on July 11, 1996.
On July 30, 1996, the agency and appellant entered into a settlement of
appellant's first complaint, Agency Number 95-0309-SSA. According to
the agency, the agreement provided that appellant would withdraw any
complaints pending at the time of settlement. According to the agency,
Agency Number 96-0281-SSA was closed pursuant to the settlement agreement.
On September 4, 1996, appellant filed a formal complaint, Agency Number
96-0545-SSA, for the allegations remanded by the AJ in 95-0309-SSA.
The agency dismissed the complaint for untimely counselor contact, but
the Commission, in EEOC Appeal No. 01972285 (October 9, 1997), vacated
the agency's decision. The Commission held that appellant alleged a
continuing violation, and ordered the agency to conduct a supplemental
investigation as to whether a continuing violation existed that would
explain appellant's otherwise untimely counselor contact.
On February 4, 1998, the agency again dismissed all of the allegations
pursuant to EEOC Regulation 29 C.F.R. �1614.105(a)(1), for failure to
timely contact an EEO counselor. Specifically, the agency found that
appellant first raised allegations of sexual harassment to investigators
on July 10, 1995, and first requested to amend her complaint to
include sexual harassment and hostile work environment allegations on
May 30, 1996. The agency denied appellant's claim of a continuing
violation, finding that appellant should have been aware of the alleged
discrimination more than 45 days before she raised the allegations.
Alternatively, the agency dismissed the complaint pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a) for stating a claim that was pending
or previously decided by the agency in Agency Number 96-0281-SSA.
On appeal, appellant, through her representative, argues that the agency
did not conduct a proper supplemental investigation to determine whether
appellant's current allegations shared a common nexus with accepted
allegations. Further, appellant alleges that her work environment
continues to be hostile, and that her requests for reassignment to a
different division were wrongfully denied in 1996. Appellant admits,
however, that on October 17, 1994, during a training session about
sexual harassment in the workplace she �first became aware that the
work environment and the types of treatment that she had been subjected
to. . .� were discriminatory.
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 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. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation can be triggered
before all the facts that support a charge of discrimination have become
apparent, but not until a complainant reasonably suspects discrimination.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
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 (Dec. 28, 1990).
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 (Sept. 21, 1990); Maldonado v. Department of the Interior,
EEOC Request No. 05900937 (Oct. 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 (Oct. 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); 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 an overall discriminatory pattern).
By appellant's own admission through her representative, appellant was
aware of the agency's alleged discrimination against her on October 17,
1994. Therefore, appellant fails to establish a continuing violation,
because she had a duty to assert her rights when the subsequent incidents
occurred. See Sabree v. United Brotherhood of Carpenters and Joiners
Local No. 33, 921 F.2d 396 (1st Cir. 1990).
All allegations that took place within 45 days of appellant's initial
counselor contact, however, are timely. A complainant commences the
EEO process by contacting an EEO Counselor and �exhibiting an intent
to begin the complaint process.� See Gates v. Department of Air Force,
EEOC Request No. 05910798 (Nov. 22, 1991) (quoting Moore v. Department
of Treasury, EEOC Request No. 05900194 (May 24, 1990)). For purposes of
timeliness, contact with an agency official who is �logically connected
with the EEO process� is deemed a Counselor contact. Jones v. Department
of the Army, EEOC Request No. 05900435 (September 7, 1990); see Kemer
v. General Services Administration, EEOC Request No. 05910779 (Dec. 30,
1991).
The Commission finds that when appellant urged the EEO investigator of
Agency Number 95-0309-SSA to include sexual harassment and hostile work
environment allegations in her complaint, appellant made her initial
EEO counselor contact. The agency EEO investigator is an official who
is logically connected to the EEO process, and appellant's request
that the counselor investigate the additional allegations exhibited
a clear intent to begin the complaint process on those allegations.
See Howard v. Department of Army, 01955428 (Aug. 14, 1996) (holding
that presenting a complaint addendum to an investigator suffices for
initial counselor contact for additional allegations not raised during
the prior counseling and complaint process). The Commission further
finds that the initial contact took place on or around July 6, 1995,
the date of the investigator's response to appellant's request to add
harassment allegations.
Allegation (1) occurred in 1994, more than 45 days prior to appellant's
initial counselor contact. Therefore, the agency's decision to dismiss
allegation (1) is AFFIRMED. Appellant also alleged that harassment
causing a hostile work environment occurred from January 1994 through July
1996; but appellant provided no specific dates for specific instances of
harassment during that period. Any allegations that occurred within 45
days of appellant's initial counselor contact of July 6, 1995, would be
timely, but the Commission is unable to determine which, if any, of the
incidents were timely reported absent further information from appellant.
Accordingly, the agency's decision to dismiss allegation (2) for untimely
counselor contact is VACATED.
Regarding the agency's alternative grounds for dismissing appellant's
complaint, EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency
shall dismiss a complaint or a portion of a complaint that states the
same claim that is pending before or has been decided by the agency or
Commission. The Commission has interpreted this regulation to require that
the allegation must set forth the "identical matters" as are contained
in a previous complaint filed by the same complainant, in order for
the subsequent complaint to be rejected as stating the same claim. See
Russell v. Dept. of the Army, EEOC Request No. 05910613 (August 1, 1991).
After a thorough review of the record, the Commission finds that Agency
Number 96-0281-SSA involves the same claim as allegation (2)(a) of the
present complaint, but does not address any other identical matters.
Agency Number 96-0281-SSA involved, in relevant part, allegations that
�appellant was subjected to a hostile work environment when the managers
(all of whom are male) ignored and refused to talk to appellant because
they feared being accused of sexual harassment, and excluded appellant
from information pertinent to her job.� Accordingly, the agency's
dismissal of allegation (2)(a) for stating a claim previously decided
by the agency is AFFIRMED.
CONCLUSION
Accordingly, the agency's decision to dismiss allegations (1) and (2)(a)
is AFFIRMED. The decision to dismiss allegation (2)(b) is VACATED.
Allegation (2)(b) is REMANDED to the agency for further processing in
accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall notify appellant of the opportunity to meet with an EEO
Counselor to clarify allegation (2)(b). Appellant shall have fifteen
(15) calendar days from the date of her receipt of the agency's notice
within which to contact an EEO Counselor to clarify her allegation.
Specifically, appellant shall specify the dates on which the identified
remarks occurred.
Thereafter, the agency shall issue a new final decision or notice of
processing regarding allegation (2)(b).
A copy of the agency's notice to appellant of the opportunity to meet
with an EEO Counselor and a copy of the new final decision or notice or
processing regarding allegation (2)(b) 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 (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).
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:
April 2, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations