01985195
08-10-1999
Gary N. Tigert, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Gary N. Tigert, )
Appellant, )
)
v. ) Appeal No. 01985195
) Agency No. 3983056
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
Gary N. Tigert (hereinafter �appellant�) filed an appeal with this
Commission from a final decision of the Department of Transportation
(hereinafter �agency�) concerning his 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. The final agency decision was
received by appellant's attorney on May 27, 1998. The appeal arrived at
the Commission via facsimile on June 15, 1998. Therefore, the appeal
is timely (see 29 C.F.R. � 1614.402(a)), and is accepted in accordance
with EEOC Order No. 960, as amended.
BACKGROUND
On February 11, 1998, appellant initiated contact with an EEO Counselor.
After listening to appellant's concerns, the Counselor believed that he
had a conflict of interest with appellant's case due to his �closeness to
the parties involved� and indicated that he would arrange for a different
Counselor for him. The agency admitted that due to a breakdown in
communication, appellant's counseling was postponed until March 26, 1998.
The Counselor's Report which stemmed from this March 26, 1998 meeting,
indicated that appellant alleged sexual harassment when his supervisor
(female, Assistant Air Traffic Manager) made compliments about appellant's
appearance, made statements about her menstrual cycle and sang a sexually
inappropriate song.
Informal efforts to resolve appellant's concerns were unsuccessful and
on April 6, 1998, he filed a formal complaint. Therein, he alleged
discrimination on the basis of sex (male) when he was sexually harassed
by his supervisor over an extended period of time and was retaliated
against when he complained about his supervisor's behavior. Appellant's
complaint set forth events which occurred between himself, his immediate
supervisor (hereinafter �S�), and others in his office over a 16 month
period. Specifically, these incidents involved improper behavior on S's
part, such as when she bought appellant a beer at an office function,
sang a sexually inappropriate song to appellant, and referred to her
menstrual cycle in a discussion with appellant. The complaint also
described various problems which involved work assignments and the
daily relationship between appellant and S, such as when S assigned
appellant a project which she herself should have handled; and when S
and appellant disagreed about an assignment involving the review of a
Traffic Management Officer whom S wanted to reassign. Appellant and
S had several confrontations regarding this issue, culminating in a
meeting on February 10, 1998, during which S told appellant he had
an attitude problem. Moreover, the complaint described inappropriate
actions taken against appellant when he complained about S's behavior.
These actions included a meeting with S on March 17, 1998, during which
she discussed his performance evaluations and then referred to the fact
that he had sought EEO counseling. Finally, appellant alleged that on
April 2, 1998, he was threatened with removal by the Air Traffic Manager
due to appellant's �inability to interface� with S.
The agency issued a final decision on May 20, 1998, which characterized
appellant's allegations as follows:
(1) Were you discriminated against, via sexual harassment, when
your supervisor allegedly bought you a beer after a meeting, sang an
inappropriate song, and referred to her menstrual cycle as �Velma�?
(2) Were you discriminated against, via disparate treatment and possibly
reprisal, when your supervisor allegedly discussed your EEO issues
immediately after discussing your 1997 performance evaluation?
(3) Were you discriminated against, via disparate treatment, when your
facility manager, on April 2, 1998, allegedly removed you from your
position?<1>
The agency dismissed Allegation No. 1 for untimely contact with an
EEO Counselor, arguing that these incidents took place between 3 and
13 months prior to appellant's initial counselor contact. The agency
dismissed Allegation Nos. 2 and 3, arguing that appellant had not raised
them in counseling.
CONTENTIONS ON APPEAL
On appeal, appellant argues that the agency mischaracterized the nature
of his allegations, noting that his claim explicitly included the
allegation that S created a hostile work environment which continued
through the time period immediately prior to his contact with the EEO
office and after. Appellant also notes that he raised the issue of
retaliation during counseling. Finally, appellant argues that despite
his requests, he has never been given a copy of the counselor's report.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints
of discrimination 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. United States Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the time
limitation is not triggered until a complainant reasonably suspects
discrimination, but before all the facts that support a charge of
discrimination have become apparent.
The record reveals this case to be one in which the counseling portion
of the EEO process went awry. While the document which the agency
submitted as the �EEO Counselor's Report� lists only one allegation--that
encompassed in Allegation No. 1 of the final decision--other documents
in the record reveal that when appellant initially sought counseling,
he related many more allegations to the Counselor. A memo from an EEO
Counselor dated February 11, 1998, noted that appellant �explained the
details of his situation� to the Counselor, who felt she had a conflict
of interest. The record also contains a memo dated May 27, 1998, which
clarifies that the Counselor and appellant discussed appellant's personal
and on-the-job-interaction with his supervisor, his perception of job
discrimination/harassment based upon his gender, and his feeling that
certain job assignments and job actions were retaliatory due to conflicts
with his supervisor. While it is not clear exactly what allegations
were discussed, it is apparent from this memo that appellant did raise
allegations other than those reported in the official �EEO Counselor's
Report.�
The agency dismissed Allegation No. 1 for untimely contact with an EEO
Counselor. However, we find that at least one of the incidents described
in appellant's formal complaint occurred within 45 days of appellant's
initial EEO Counselor contact of February 11, 1998. Specifically, this
incident occurred on February 10, 1998 and involved S's accusation that
appellant had a bad attitude when discussing an assignment with appellant.
The final agency decision failed to address this, as well as several
other incidents raised in appellant's complaint.<2>
The agency argued that only Allegation No. 1 was raised with an
EEO Counselor, but that it was not raised within 45 days of the EEO
contact. If this were the case, the fact that appellant described
other allegations in his formal complaint could not be factored into an
analysis of the timeliness of Allegation No. 1. However, as described
above, the Counselor's Report clearly does not correctly indicate the
range of allegations raised by appellant when he initiated counseling
on February 11, 1998. The May 27, 1998 memo from the Counselor whom
appellant contacted, notes that appellant discussed issues of sexual
harassment and retaliation in job assignments and job actions. Due to
a less than ideal counseling process, the agency is apparently unable
to provide a detailed report of the initial counseling session during
which appellant explained the �details of his situation�. We refuse to
allow this failure on the part of the agency to lead to the dismissal of
appellant's allegations. Therefore, after an examination of the May 27,
1998 memo, we find that appellant properly raised the February 10, 1998
meeting with an EEO Counselor.<3> As this meeting took place within 45
days of appellant's EEO contact of February 11, 1998, we find appellant
timely raised this allegation with an EEO Counselor.
With this in mind, we turn to the dismissal of Allegation No. 1. While
this allegation may be untimely standing on its own, together with
the February 10, 1998 incident and other allegations described in the
complaint, it satisfies the requirements of a continuing violation. 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. United States Postal
Service, EEOC Request No. 05901150 (December 28, 1990); Starr v. United
States 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).
Here, appellant alleged ongoing sexual harassment which created a hostile
environment and retaliation based on his EEO contact at the hands of
his supervisor. The incidents described in the complaint--inappropriate
behavior and comments by S (Allegation No. 1), trouble concerning
various assignments and the daily relationship between appellant and S
(allegations not addressed by the agency in it's final decision)--are more
in the nature of ongoing harassment than discrete employment decisions.
Therefore, appellant alleged a continuing violation. Accordingly, the
agency's decision to dismiss Allegation No. 1 for untimely contact with
an EEO Counselor was improper and is REVERSED and REMANDED for further
processing in accordance with the ORDER below and applicable regulations.
The agency dismissed Allegation Nos. 2 and 3 because appellant failed
to raise them with an EEO Counselor. As noted above, we have found
that the record supports appellant's contention that he raised numerous
allegations during counseling which are not reflected in the Counselor's
Report. While the record is less than clear on what allegations were
raised when appellant initiated contact with an EEO Counselor on February
11, 1998, Allegation Nos. 2 and 3 occurred after February 11, 1998,
and were therefore clearly not raised with the EEO Counselor during the
initial counseling session. Specifically, Allegation No. 2 involves
a March 17, 1998 meeting in which S discussed appellant's performance
evaluations and then mentioned his EEO issues. Allegation No. 3 involves
an April 2, 1998 discussion in which appellant was told he was going
to be removed from his position due to his inability to work with S.
The complaint clearly alleged that these incidents were further examples
of sexual harassment and retaliation.
EEOC Regulation 29 C.F.R. � 1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990); Webber v. Department of Health and Human Services,
EEOC Appeal No. 01900902 (February 28, 1990). We find that Allegation
Nos. 2 and 3 are clearly like or related to the allegation concerning the
February 10, 1998 incident in that they all involve sexual harassment
and retaliation by the same supervisor, and, in fact, allegedly stem
from appellant's attempts to deal with his supervisor's behavior by
initiating the EEO process.
Commission regulations generally require that issues like or related
to previously counseled matters be remanded for counseling themselves.
See Quirk v. United States Postal Service, EEOC Request No. 05940631
(February 2, 1995). Where, however, the like or related allegations
concern incidents of discriminatory harassment as part of a continuing
violation, rather than separate or isolated acts of discrimination, the
agency is required to include those incidents in its investigation of
the continuing violation claim, and no further counseling is necessary.
See Mitchell v. Department of Veterans Affairs, EEOC Request No. 05960656
(January 5, 1998); EEO Management Directive 110, 5-4 (October 22, 1992).
Accordingly, the agency's decision to dismiss Allegation Nos. 2 and
3 was improper and is REVERSED and REMANDED for further processing in
accordance with the ORDER below and applicable regulations.
Finally, we again note that the agency did not address all of the
allegations set forth in the complaint--i.e., by narrowing an eight page
complaint to three allegations, the agency disregarded two allegations
raised by appellant. The agency's failure to address allegations raised
in a complaint is tantamount to an improper dismissal by the agency. See
Kapp v. Department of the Navy, EEOC Request No. 05940662 (January, 23,
1995). Accordingly, the agency's decision to dismiss these allegations,
described below, was improper and is REVERSED and REMANDED for further
processing in accordance with the ORDER below and applicable regulations.
Because of the confused nature of the record, we will provide a list of
the allegations which the agency shall investigate. Based on the above
discussions regarding continuing violations and like or related matters,
we find all of these following allegations to have been timely raised
by appellant. After an examination of the record, we find that appellant
alleged he was the victim of ongoing sexual harassment which created a
hostile work environment based on his sex (male) and/or reprisal (EEO
contact) when:
(1) his supervisor bought him a beer at an office function, sang a
sexually inappropriate song to him, and referred to her menstrual cycle
as �Velma� in a discussion with him (referenced as Allegation No. 1 in
the final agency decision);
(2) his supervisor inappropriately assigned appellant to certain projects
and tasks including a project which she should have handled and a
project involving the possible reassignment of a Traffic Management
Officer, which lead to several confrontations between appellant and
his supervisor, culminating in a February 10, 1998 meeting in which
appellant was told that he had an attitude problem (not addressed in
the final agency decision);<4>
(3) his supervisor discussed his EEO issues immediately after discussing
his 1997 performance evaluations on March 17, 1998 (referenced as
Allegation No. 2 in the final agency decision);
(4) he attempted to seek the help of upper management (the Air Traffic
Manager, hereinafter �ATM�) in dealing with his supervisor's behavior,
but met with little success. For example, when appellant sought advice
from ATM when his supervisor inappropriately abdicated responsibility on
an assignment which appellant was assisting on, he was told to work out
any problems with his supervisor. Also when ATM learned that appellant
had contacted an EEO Counselor, ATM told appellant that the facility
should not air their problems in public and that appellant and his
supervisor should work out their problems together (not addressed in
the final agency decision);<5>
(5) he was threatened with removal on April 2, 1998 due to his inability
to interface with his supervisor (referenced as Allegation No. 3 in the
final agency decision).
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint
was improper and is REVERSED and REMANDED for further processing in
accordance with the ORDER below and applicable regulations.
ORDER
The agency is ORDERED to process appellant's complaint in accordance
with 29 C.F.R. � 1614.108 and the provisions herein. Specifically,
the agency shall take the following actions:
1. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall issue to appellant a copy of the �EEO Counselor's
Report� dated April 21, 1998, as well as copies of the February 11, 1998
and May 27, 1998 memoranda from the Counselor whom appellant initially
contacted. A copy of the agency's letter forwarding these documents to
appellant must be sent to the Compliance Officer as referenced below.
2. The agency shall acknowledge to appellant that it has received
the remanded allegations as described in this decision, 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 appellant requests a final
decision without a hearing, the agency shall issue a final decision with
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 (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:
Aug. 10, 1999
DATE Carlton M. Hadden, Acting Director,
Office of Federal Operations1 As noted above, the complaint itself
appears to allege that appellant was threatened with removal,
not that he was removed.
2 The agency's failure to address some of the allegations raised by
appellant will be discussed in detail below.
3 We also note that the �EEO Counselor's Report� provided by the agency
which stemmed from the March 26, 1998 counseling session, lists February
10, 1998, as the most recent occurrence of discrimination.
4 These incidents are described on pages 2-4 of appellant's March 29,
1998 complaint.
5 These incidents are described on pages 2-3 and 4 of appellant's March
29, 1998 complaint.