01983879
06-29-1999
Catherine Coley, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Catherine Coley v. Social Security Administration
01983879
June 29, 1999
Catherine Coley, )
Appellant, )
) Appeal No. 01983879
v. )
) Agency No. 980172
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Appellant 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., and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq. The appeal is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for untimely contact with an EEO Counselor and
failure to state a claim.
BACKGROUND
Appellant filed a formal complaint, on December 8, 1997, containing
multiple allegations of discrimination.
The appellant alleges that based on age (49) and reprisal (prior EEO
activity), she was discriminated against when:
(1) on August 6, 1997, she was not selected for the GS-7 Benefit
Authorizer (BA) position and she learned that she was not highly
recommended for the position;
(2) on November 4, 1997, she was not selected for the GS-5/6/7 Benefit
and Earnings Technician (BET) position;
(3) on July 6, 1997, she was not selected for the GS-6/7 BET position;
and
(4) in retaliation for having filed previous EEO complaints, she has
not been highly recommended for promotion.
The appellant alleges that based on color (light brown) and reprisal
(prior EEO activity), she is being discriminated against:
(5) because she has not been provided appropriate training in which to
perform her assigned duties;
(6) when she is assigned work that is outside the scope of her position
description (health insurance issues and BA referrals);
(7) when, in June 1997, numeric production standards (WCAPS and parametric
listings) were implemented to evaluate her performance;
(8) as a result of the agency's policy and practice of allowing hiring
officials to select anyone on the BQL without question or explanation;
and
(9) as a result of the agency's policy and practice of allowing hiring
officials to solicit recommendations which they can ignore or accept
without question or explanation.
The appellant further alleges that based on age (49) and reprisal (prior
EEO activity), she was discriminated against when:
(10) she was subjected to a continuing pattern of nonselection. She cites
the following vacancies in support of her allegation:
(a) the GS-7 BA position advertised on April 3, 1996 under VAN B-2419;
(b) the GS-7 BA position advertised on April 3, 1996 under VAN B-2415;
(c) the GS-5 BA position advertised on April 3, 1996 under VAN B-2423;
and
(d) the GS -5/6/7 BET position advertised under VAN B-2396. The effective
date of selection for this particular position was September 1, 1996.
The Branch Manager (BM) changed the first line supervisor's promotional
recommendation for VAN B-2396 from "highly recommended" to "recommended,"
thereby reducing appellant's chances for promotion.
The appellant alleges that based on reprisal (prior EEO activity),
she was discriminated against when:
(11) during her December 1994 to November 1996 tenure in Module 1, she
did not receive the full training for the Claims Clerk (EIE) position
that she was promised; and
(12) on March 4, 1997, the agency denied her request for reassignment.
The appellant alleges that based on color (light brown) and reprisal
(prior EEO activity), she was discriminated against when:
(13) in November 1996, she was involuntarily reassigned from Module 1
to Module 3; and
(14) she was subjected to a hostile work environment by her immediate
supervisor and other managers when, after her reassignment to Module 3
in November 1996, when:
(a) the AMM, without any introduction or welcome, directed her to a
desk outside the AMM's office;
(b) the AMM did not introduce her to other Module employees until the
second week of her arrival;
(c) the BM showed "negative attitudes" by being curt or not speaking at
times, by using her position to "bad mouth" the appellant, by making the
appellant out to be a problem, and by accusing the appellant of walking
out of a training class;
(d) she was told by the Acting PETAL, in front of others, that she did
not know her job;
(e) she was referred to by the Division Director as a "frustrated old
timer;"
(f) the Module Manager (MM) told her she was not doing her job and
accused her of walking out of a training class; and
(g) in June 1997, the AMM refused to talk with her unless someone else
was present.
In its final agency decision, the agency dismissed allegations 10 - 13
as untimely when it concluded that the appellant failed to comply with
the applicable time limits contained within 29 C.F.R. �1614.105(a)(1) and
that the allegations did not meet the standard for a continuing violation.
Allegation 14 was dismissed for failure to state a claim when the agency
found that the actions contained therein were not sufficient to establish
a claim of harassment. Allegations 1 - 9 were accepted for investigation.
This appeal followed.
ANALYSIS AND FINDINGS
Untimely Contact with an EEO Counselor
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.
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.
Further, the Commission has held that the time requirements for initiating
EEO counseling may 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 (December 28, 1990). However, in determining
whether a claim for a continuing violation is stated, it is important
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).
The agency, in its final decision, argues that allegations 10 - 13
do not establish a claim of continuing violation because, although
the allegations were interrelated, the appellant, as evidenced by her
prior complaints, reasonably suspected discrimination in a timely manner
but chose not to preserve her rights. Appellant, in her statement on
appeal, contends that she did not reasonably suspect discrimination
because she was not aware that a claim of discrimination could be based
upon retaliation. She asserts that she believed that such claims could
only be based upon race, sex, age, and religion. Assuming that appellant
did not know that reprisal could be used as a basis for discrimination,
the evidence in the file indicates that, with respect to allegations 10
and 13, appellant alleged discrimination on other bases (age and color).
By appellant's own admission, she knew that claims may be filed upon
such bases. The Commission notes that the appellant does not contend
that she was not aware of the occurrence of the alleged events, rather
that she was not aware of retaliation as a basis. If appellant believed
that allegations (10) and (13) were based on age and color, then she
should have filed her complaint as soon as she was made aware of the
occurrence of those events, irrespective of whether or not she knew that
reprisal could be a basis for discrimination. However, notwithstanding
those other bases and in light of the fact that appellant has filed prior
EEO complaints, and therefore, presumably has undergone EEO counseling,
the Commission finds that she knew or should have known that reprisal
was a proper basis upon which to lodge a complaint. While the dismissed
allegations may have been related to those accepted for investigation,
we find that appellant had prior knowledge or a reasonable suspicion
of discrimination within the mandated time frame, thereby rendering
the continuing violation doctrine inapplicable. See Jackson, supra,
(holding that a relevant factor in determining whether a continuing
violation has been stated is when complainant reasonably suspected
discrimination). Accordingly, it is our holding that allegations 10 -
13 were dismissed properly as violative of the time restrictions contained
in 29 C.F.R. �1614.105(a)(1).
Failure to State a Claim
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment allegations,
when considered together and assumed to be true, were sufficient to state
a hostile or abusive work environment claim. See Miller v. U.S. Postal
Service, EEOC Request No. 05941016 (June 2, 1995).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment allegations are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that allegations of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. U.S. Postal
Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal
Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Request No. 01933866 (November 22,
1995) citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).
Also, the trier of fact must consider all of the circumstances, including
the following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
After conducting a hostile work environment analysis with respect to the
allegations contained in (14), the Commission finds that appellant has
stated a viable claim under Title VII. Appellant alleges that she was
subjected to harassment when, among other things, she was "bad mouthed"
by the BM, referred to by the Division Director as a "frustrated old
timer," and falsely accused, by two different managers, of walking out
of a training class. We find that such actions are severe and pervasive
enough to create a hostile working environment. That being the case,
we hold that the agency erred in concluding that allegation 14 failed
to state a claim.
CONCLUSION
Accordingly, the decision of the agency was erroneous, with respect
to allegation (14), and is, therefore, REVERSED and REMANDED, in part,
for further processing in accordance with this decision and the proper
regulations. Conversely, the final agency decision is AFFIRMED as to
allegations 10 - 13.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (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 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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment 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(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 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. 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:
June 29, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations