Alice M. Shank, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionApr 2, 1999
01982800 (E.E.O.C. Apr. 2, 1999)

01982800

04-02-1999

Alice M. Shank, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Alice M. Shank v. Social Security Administration

01982800

April 2, 1999

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