01982729
03-26-1999
Deborah Treschitta, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Deborah Treschitta v. Department of Transportation
01982729
March 26, 1999
Deborah Treschitta, )
Appellant, )
)
v. ) Appeal No. 01982729
) Agency No. 5-98-5015
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On February 23, 1998, appellant filed an appeal with this Commission
from a final agency decision (FAD), dated January 16, 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.<1> In her complaint, appellant alleged that she was subjected
to discrimination on the basis of sex (female) when:
Appellant's second line supervisor told his secretary that appellant
was a pathological liar;
Appellant's request for additional practice problems and additional
study time was denied in September 1997;
Appellant's familiarization trip, scheduled for October 17, 1997, was
denied because she did not arrive at the airport one hour prior to the
flight's departure;
Appellant's days off were changed because of a new policy requiring
developmental employees to be on a different team for associate radar
training in October 1997;
Appellant's familiarization flight privileges were revoked in September
1996;
Appellant's request to be placed in an administrative position in
October 1996, due to an on-the-job injury was denied;
Appellant's request for excused leave was denied in 1996 when she
reported six (6) minutes late;
Appellant was questioned about being two (2) minutes late in September
1996; and
Appellant's new supervisor questioned her in August 1996 about
allegations made by her former supervisor which were kept in an informal
personnel file.
The agency accepted allegations (1) - (4) for investigation, and dismissed
allegations (5) - (9) pursuant to EEOC Regulation 29 C.F.R. �1614.107(b),
for failure to timely file a formal complaint. The agency found that
although appellant did contact an EEO Counselor in 1996, regarding
allegations (5) - (9), she did not timely file a formal complaint of
discrimination.
On appeal, appellant argues, through her attorney, that her 1996
counseling was never formally terminated, and that she never filed a
formal complaint because her counselor never issued a Notice of Right
to File a Formal Complaint on the allegations. Appellant states, "Not
wanting to engage the EEO process, however, appellant has endeavored
to try informally to resolve her concerns." Appellant claims that
the counselor made several unsuccessful attempts to resolve the
1996 allegations. Alternatively, appellant argues that her dismissed
allegations were part of a continuing violation, and therefore should
be deemed timely.
A review of the record reveals that after speaking with a counselor in
1996, appellant contacted a separate counselor on July 15, 1997, regarding
allegation (1). The second counselor issued a Notice of Right to File
a Formal Complaint on October 29, 1997, and appellant filed a formal
complaint on November 12, 1997, which is the subject the instant appeal.
The record includes notes of telephone conversations with the counselor
who handled the 1996 allegations, and with appellant. The counselor
claims that in 1996, appellant requested that EEO not step-in or
attempt to resolve her complaint. Further, the counselor explained that
appellant contacted an EEO counselor only to seek advice, not to file
a claim. The record of appellant's conversation states that appellant
attempted to resolve her allegations without filing a formal complaint.
After continuing harassment, however, appellant filed the complaint at
issue in the present appeal.
ANALYSIS AND FINDINGS
While the agency dismissed appellant's complaint for failure to file
the formal complaint in a timely manner, upon review, we find that the
complaint is more properly dismissed on the grounds of untimely EEO
contact.
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.
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 (November 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194
(May 24, 1990)).
Although appellant contacted a counselor at some point in 1996, she
did not exhibit an intent to begin the complaint process. By her own
admission, appellant attempted to resolve her allegations informally,
without filing a formal complaint. Accordingly, her 1996 counselor
contact does not suffice as the initial counselor contact pursuant to
EEOC Regulation 29 C.F.R. �1614.105(a). Appellant's initial contact
with an EEO Counselor, then, occurred on July 15, 1997 � the date on
which appellant contacted the second counselor and intended to pursue
a complaint. The July 15, 1997 contact occurred well beyond forty-five
(45) days after the 1996 incidents.
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 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989).
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 (September 21, 1990); Maldonado v. Department of the
Interior, EEOC Request No. 05900937 (October 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 (October 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).
Upon review, we find that appellant has failed to establish a continuing
violation, because appellant fails to survive the Sabree analysis.
Appellant clearly appreciated that she was being discriminated against in
1996, when she contacted an EEO counselor, however, she did not pursue
a complaint at that time. Therefore, the agency's decision to dismiss
allegations (5) - (9) was proper for the reasons set forth herein.
CONCLUSION
The agency's dismissal of allegations (5) - (9) is AFFIRMED.
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 (S0993)
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:
March 26, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date appellant received
the agency's final decision. Accordingly, since the agency failed to
submit evidence of the date of receipt, the Commission presumes that
appellant's appeal was filed within thirty (30) days of receipt of the
agency's final decision. See 29 C.F.R. �1614.402.