01A21813_r
06-27-2002
Dionne F. Mahone, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Dionne F. Mahone v. Department of Justice
01A21813
June 27, 2002
.
Dionne F. Mahone,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A21813
Agency No. B-02-2420
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 9, 2002<1>, 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
On August 9, 2001, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful. In her formal
complaint, complainant alleged that she was subjected to discrimination
on the bases of race (African-American), disability and in reprisal for
prior EEO activity when:
in August 2001, the agency delayed processing documents related to
complainant's workers' compensation claim;
on July 17, 2001 complainant received a proposed letter of removal;
on June 6, 2001, the agency denied complainant's request for a parking
space as accommodation for her disability;
the agency improperly charged complainant AWOL for the period March 26
to May 4, 2001;
on May 7, 2001, the agency breached a verbal agreement to promote
complainant;
in April 2000, the agency denied her supervisor's request that complainant
be promoted;
the agency failed to respond to complainant's requests in 1999 and 2000
for assistance in completing her assignments, while responding to similar
requests of Caucasian employees;
in October 2000, complainant was placed on a Performance Improvement Plan
(PIP);
the agency failed to provide complainant an interim performance rating
during the 2000 rating period; and
on or about August 22, 2000, complainant was provided with a performance
appraisal that addressed a time period addressed in a prior evaluation.
The agency dismissed claims 1 and 2 for failure to state a claim,
finding that complainant had not established that she was an aggrieved
employee. In addition, the agency dismissed claim 3-10 on the grounds
of untimely EEO Counselor contact. Specifically, the agency determined
that complainant's initial EEO counselor contact occurred on August 9,
2001, and was untimely regarding these claims. Regarding claims 7 and
8, the agency also determined that complainant had previously brought
the matter contained therein to the attention of an EEO Counselor but
failed to pursue them formally when informal counseling failed.
As a threshold matter, the Commission finds that the agency misdefined
complainant's complaint. Complainant's 10 claims actually comprise
one single claim of ongoing harassment. In her complaint, complainant
alleged a series of events which occurred from 1999 to August 2001.
Specifically, complainant claimed that she was subjected to continuous
harassment including a large workload without sufficient assistance;
denial of performance appraisal plans; denial of disability accommodation;
failure to promote; and proposed removal. Moreover, the record
reveals that the same supervisor was primarily involved in each of the
discriminatory events that complainant enumerated. Therefore, we find
that the enumeration of alleged incidents in claims 1 through 10 are
components of a single, broad claim of ongoing discriminatory harassment.
Claims (1) and (2)
The Commission determines that the agency improperly dismissed claims
1 and 2 for failure to state a claim. The Commission determines that
the accumulation of claims and events alleged in complainant's complaint
is sufficient to state an overall claim of ongoing harassment. We find
that the agency improperly distilled claims 1 and 2 into separate claims
instead of viewing those matters as evidence and background information
regarding the overall claim of harassment. By alleging a pattern of
harassment, complainant has stated a cognizable claim under the EEOC
regulations with regard to claims (1) and (2). See Cervantes v. USPS,
EEOC Request No. 05930303 (November 12, 1993).
Claims (3) - (10)
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 further 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
also held that the time requirements for initiating EEO counseling could
be waived as to certain claims within a complaint when 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 Reid v. Department of Commerce, EEOC Request No. 05970705 (April 22,
1999); McGivern v. United States Postal Service, EEOC Request No. 05901150
(December 28, 1990).
Upon review, the Commission finds that the agency improperly dismissed
claims 3 through 10 for untimely EEO Counselor contact. The Commission
has held that an agency should not ignore the pattern aspect of a
complainant's claims and define the issues in a piecemeal manner, where
an analogous theme unites the matters contained therein. See Meaney
v. Department of the Treasury, EEOC Request No. 05940169 (November
3, 1994). The Commission notes that all the claims in the instant
complaint address alleged discriminatory harassment by a single agency
official. Thus we find that the incidents in complainant's complaint
are part of a continuing violation, some of which were timely raised
with an EEO Counselor (claims (1) and (2), discussed above). Moreover,
we note that the Commission has previously held that evidence showing
that a complainant had, or should have had, a reasonable suspicion
of discrimination more than 45 days prior to initiating EEO Counselor
contact, will not preclude acceptance of an otherwise timely claim of
ongoing discrimination. See Anisman v. Department of Treasury, EEOC
Request No. 05A00283 (April 12, 2001).
Moreover, the Commission notes that the agency determines that complainant
initially sought EEO counseling in October 2000, regarding the matters
identified in claims 7 and 8, but that complainant chose not to pursue the
EEO complaint process at that time. However, there is no EEO Counselor's
report or other documentary evidence indicating that complainant sought
counseling in October 2000, regarding claims 7 and 8.
In summary, the Commission determines that the agency fragmented
complainant's claims by rejecting each claim as separate matters; and that
this action represents a piecemeal method for addressing the overriding
ongoing harassment claim presented herein. See Ferguson v. Department
of Justice, EEOC Request No. 05970792 (March 30, 1999). Consequently,
the Commission finds that claims 1 through 10 should be processed as an
overall claim of ongoing harassment by the agency. Accordingly, the
final agency decision dismissing complainant's complaint is REVERSED,
the complaint, as clarified herein, is REMANDED to the agency for further
processing in accordance with this decision and the Order 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
June 27, 2002
__________________
Date
1In its final decision, the agency
inadvertently dated its decision as January 9, 2001.