01A22724_r
12-10-2002
Barbara Wilson, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Barbara Wilson v. Department of Justice
01A22724
December 10, 2002
.
Barbara Wilson,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A22724
Agency No. P-1999-0062
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 27, 2002, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
The record in this case contains an EEO Counselor's Report that
indicates that complainant initiated EEO Counselor contact on June 15,
1998, claiming that she was discriminated against on the basis of sex.
Informal efforts to resolve complainant's concerns were unsuccessful.
On November 11, 1998, complainant filed a formal complaint. A fair
reading of the pre-complaint documents and the formal complaint reflect
that complainant claimed that she was discriminated against when:
On or about November 4, 1997, while complainant was on approved leave
status, she was contacted and harassed at her residence regarding a rumor;
On or about February 13, 1998, complainant was denied a parking pass
because she was on extended maternity leave;
In late March or early April 1998, complainant's supervisor made
disparaging and discriminatory remarks regarding older women having
babies; and
On May 8, 1998, complainant's supervisor made inappropriate comments
when discussing complainant's performance review, and that while all her
co-workers were rated �outstanding�, she was underrated as �exceed� in
her performance evaluation.
Throughout her complaint, complainant alleged a series of events which
allegedly occurred from November 1997 through May 1998. Specifically,
complainant claimed that during this period she was subjected to
harassment by her supervisor as a result of her extended maternity leave.
The agency issued a final decision dismissing claims (1) - (3) for
untimely EEO Counselor contact. The agency determined that complainant
initiated EEO Counselor contact on June 15, 1998, which it found was
beyond the forty-five-day limitation period. The agency also determined
that, although complainant claimed that she was subjected to �continuous
discrimination,� claims (1) - (3) were discrete, isolated acts which
should have triggered reasonable suspicion of discrimination at the time
each occurred. Claim (4) was dismissed for failure to state a claim.
Specifically, the agency determined that complainant did not suffer any
measurable harm as a result of the inappropriate remarks made by her
supervisor during her performance evaluation.
On appeal, complainant contends that her initial EEO Counselor contact
was on December 1997, upon her return from maternity leave. Complainant
argues that during this meeting with an EEO Counselor, she indicated
that she was being harassed; and that the EEO Counselor took notes and
indicated that he would �get back� to her. Complainant further argues
that she made follow-up telephone calls and sent e-mail messages to the
EEO Counselor, reminding him that she wished to file an EEO complaint.
Although complainant controverted the agency's initial date of Counselor
contact, we need not address this issue based on our findings, as
discussed below.
Claims (1) - (3)
As a threshold matter, the Commission finds that the agency misdefined
complainant's complaint. Complainant's four claims actually comprise
one single claim of ongoing harassment. In her complaint, complainant
alleged a series of events which occurred from November 1997 through
May 8, 1998. Specifically, complainant claimed that she was subjected
to continuous harassment related to her extended maternity leave.
Furthermore, the record reveals that the same supervisor was involved in
each of the discriminatory events that complainant enumerated. Therefore,
we find that the enumeration of alleged incidents in claim (1) through
(3) are elements of a single claim of ongoing discriminatory harassment,
when considered together with claim (4).
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) 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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
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.
Regarding claims (1) - (3), the Commission finds that these matters
are part of complainant's overall single claim of harassment. We note
that in her pre-complaint record and the formal complaint, complainant
states that the claims reflect ongoing harassment that began when she
went on extended maternity leave. Because the last chronological incident
described in claim (4), discussed below, occurred within forty-five days
of the date that the agency determined that the initial EEO Counselor
contact occurred, June 15, 1998, we find that her contact was timely
with regard to all the matters raised within the complaint.<1>
Claim (4)
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,
.106(a). 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).
Since we find that complainant's four claims are part of an overall,
single claim of ongoing harassment, we find that the agency improperly
dismissed claim (4) for failure to state a claim. Moreover, complainant
clearly alleged, during pre-complaint counseling and in her formal
complaint, that during her performance evaluation her supervisor made
inappropriate comments and, that while all her co-workers were rated
�outstanding� she was underrated as �exceed.� Here, complainant's claim
is sufficient to render her an aggrieved employee.
Accordingly, the final agency decision is REVERSED. The complaint
as defined herein is REMANDED to the agency for further processing in
accordance with this decision and the ORDER set forth below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
December 10, 2002
__________________
Date
1The Commission notes that complainant asserts
on appeal that her initial EEO Counselor contact occurred well prior to
June 1998, in December 1997 following her return from maternity leave.
We determine that even if the June 1998 date were considered the initial
EEO Counselor contact date, complainant's initial EEO contact would
nevertheless be construed as timely. We therefore find it unnecessary
to address the disparity between the date identified by the agency and
the date asserted by complainant on appeal.