01984107_r
06-14-1999
Doreatha J. Bush, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Doreatha J. Bush, )
Appellant, )
)
v. ) Appeal No. 01984107
) Agency No. BEFLFO9705H0150
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On April 1, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated March 30, 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 race (African-American) and color
(black) when:
On January 21, 1997, January 31, 1997, and March 13, 1997, appellant's
supervisor denied appellant the opportunity to serve on developmental
assignments;
On December 4, 1996, appellant's supervisor denied appellant �Microsoft
Access� training that specifically related to appellant's assignment;
Appellant's supervisor gave appellant an erroneous answer concerning
his request for a developmental assignment;
On April 4, 1997, appellant's supervisor offered appellant a
developmental assignment which was not appropriate for appellant's
grade; and
On May 15, 1997, appellant's travel claim for local travel, incurred
on May 7-8, 1997, was denied by the travel approving official.
The agency dismissed part of allegation (1) and allegation (2)
pursuant to EEOC Regulation 29 C.F.R. �1614.107(b), for untimely
counselor contact. Specifically, the agency found that appellant did
not contact a counselor until April 8, 1997, and that therefore the
two January incidents from allegation (1) and all of allegation (2)
were untimely. The agency also dismissed allegation (3) pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
The agency found that allegation (3) involved a remark or comment
unaccompanied by concrete action.
On appeal, appellant argues that she has alleged a pattern of
discrimination, and that allegations (1) and (2) are only a part of
the pattern. Further, appellant alleges that the erroneous information
from allegation (3) resulted in appellant missing training opportunities.
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 (December 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 (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).
It is well-settled that where, as here, there is an issue of timeliness,
�[a]n agency always bears the burden of obtaining sufficient information
to support a reasoned determination as to timeliness.� Williams
v. Department of Defense, EEOC Request No. 05920506 (Aug. 25, 1992).
Moreover, where, as here, a complainant alleges �recurring incidents�
of discrimination, �an agency is obligated to initiate an inquiry into
whether any allegations untimely raised fall within the ambit of the
continuing violation theory.� Guy v. Department of Energy, EEOC Request
No. 05930703 (Dec. 16, 1993) (citing Williams). As the Commission further
held in Williams, where an agency's final decision fails to address
the issue of continuing violation, the complaint �must be remanded for
consideration of this question and issuance of a new final agency decision
making a specific determination under the continuing violation theory.�
Accordingly, the agency must determine on remand whether allegations (1)
and (2) comprise part of a continuing violation in light of appellant's
accepted allegations.
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 her complaint, appellant alleged a series of events which allegedly
occurred from December 1996 through May 1997. Specifically, appellant
alleged that she was subjected to a pattern of discrimination that held
her back from training and detail advancement. Appellant has raised a
claim of harassment which created a hostile work environment. Instead of
treating these events as incidents of the claim of harassment, however,
the agency looked at them individually. Thus, we find that the agency
acted improperly by treating matters raised in appellant's complaint
in a piecemeal manner. See Meaney v. Department of the Treasury, EEOC
Request No. 05940169 (November 3, 1994) (an agency should not ignore the
"pattern aspect" of a complainant's allegations and define the issues in
a piecemeal manner where an analogous theme unites the matter complained
of). Consequently, the agency must address on remand whether allegation
(3) states a claim in the context of appellant's other allegations.
CONCLUSION
Accordingly, the agency's decision to dismiss allegations (1), (2), and
(3) is VACATED, and the allegations are REMANDED for further processing.
ORDER
The agency is ORDERED to take the following actions:
Complete a supplemental investigation to determine whether allegations
(1) and (2), when viewed in the context of appellant's other allegations,
constitute part of a continuing violation and therefore were timely
raised;
Complete a separate supplemental investigation to determine whether
allegation (3), when viewed as part of a pattern of harassment to hold
appellant back, states a cognizable claim of discrimination;
Thereafter, the agency shall determine whether appellant timely raised
allegations (1) and (2) and whether allegation (3) states a claim.
Within thirty (30) days of the date this decision becomes final, the
agency shall either issue a new FAD and/or notice of processing regarding
allegations (1), (2) and (3). A copy of the new FAD and/or notice of
processing shall be sent to the Compliance Officer as referenced herein.
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 (R0993)
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. 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:
June 14, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations