Julia M. Sanchez-Frasure, Complainant,v.Norman Y. Mineta, Secretary, Department of the Transportation, Agency.

Equal Employment Opportunity CommissionJun 11, 2001
01A03975_r (E.E.O.C. Jun. 11, 2001)

01A03975_r

06-11-2001

Julia M. Sanchez-Frasure, Complainant, v. Norman Y. Mineta, Secretary, Department of the Transportation, Agency.


Julia M. Sanchez-Frasure v. Department of Transportation

01A03975

June 11, 2001

.

Julia M. Sanchez-Frasure,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of the Transportation,

Agency.

Appeal No. 01A03975

Agency No. 2-00-2038

DECISION

Complainant filed an appeal with this Commission from an agency decision

pertaining to 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. The Commission accepts the appeal in

accordance with 29 C.F.R. �1614.405.

On November 3, 1999, complainant contacted the EEO office regarding

claims of discrimination based on race, color, national origin, and

in reprisal for prior protected activity. Informal efforts to resolve

complainant's concerns were unsuccessful. Subsequently, on November 16,

1999, complainant filed a formal complaint. The agency, in its decision,

framed the claims as follows:

Complainant was subjected to a hostile work environment when:

On October 13, 1999, complainant was notified of management's plans to

place her on an Opportunity to Demonstrate Performance (ODP) plan;

On October 7, 1999, management informed complainant that they were

preparing to give her an unsuccessful rating for her performance;

On September 30, 1999, management requested that complainant provide

them with a statement regarding an incident which allegedly occurred

between her and a co-worker on September 28, 1999;

On September 20, 1999, management called complainant to schedule a

meeting to discuss a �proposed disciplinary action� and issued her a

written notice on September 20, 1999, regarding the incident between

her and her team leader on August 27, 1999;

On August 31, 1999, complainant's supervisor threatened to place her

on Absent Without Leave (AWOL);

On August 27, 1999, complainant was confronted by a Team Leader in

a confrontational manner when she leaned across complainant's desk

gesticulating wildly at complainant with her arms while yelling at

complainant;

Complainant's work assignments as Management and Program Analyst were

changed and complainant was assigned low level administrative tasks;

Complainant was assigned a Team Leader who has earned a reputation

for aggression and malicious behavior towards her subordinates and

intimidation of her peers and superiors; and

Complainant requested information from ARX and they did not provide it

to her.

On April 6, 2000, the agency issued a decision dismissing the complaint.

The agency stated that complainant's claims were not egregious enough

to state a claim of a hostile work environment. Further, with respect

to claims 3, 6, 8 and 9, the agency determined that complainant failed

to state a claim. According to the agency, complainant failed to

show a direct harm which affected a term, condition or privilege of

her employment. Claims 1, 2, 4, and 5 were dismissed by the agency for

alleging that a proposal to take a personnel action is discriminatory.

Claim 7 was dismissed for untimely EEO Counselor contact. The agency

determined that complainant's assignments allegedly began to change in

mid-April 1999, more than forty-five days before complainant's Counselor

contact. Moreover, although complainant alleges a continuing violation,

the agency concluded that because all other claims had been dismissed,

the untimely claim (claim 7) �cannot be made timely.�

On appeal, complainant argues that the agency's decision contained

two inaccuracies. First, in claim 5 it was not her supervisor that

threatened to put her on AWOL, but rather a non-supervisory team leader.

Second, regarding the untimeliness of claim 7, complainant contends that

Person A �notified me in writing on September 29, 1999, to contact a

counselor within 45 days� and that she did so.

Claims 1, 2, 4 and 5

Pursuant to 29 C.F.R. � 1614.107(a)(5), an agency may dismiss a claim that

maintains a proposal to take a personnel action, or other preliminary step

to taking a personnel action, is discriminatory. The Commission has held

that proposed actions do not create a direct and personal deprivation

which would make a complainant an "aggrieved" employee within the

meaning of EEOC Regulations. See Charles v. Department of the Treasury,

EEOC Request No. 05910190 (February 25, 1991); Lewis v. Department of

the Interior, EEOC Request 05900095 (February 6, 1990). If, however, a

complainant alleges that the proposal or preliminary step was taken for

the purpose of harassing them for a prohibited reason, the agency may not

dismiss the issue as preliminary because, allegedly, the matter already

has adversely affected the complainant. See Henry v. United States Postal

Service, EEOC Request No. 05950229 (November 22, 1995); EEOC Management

Directive 110 (MD-110) (November 9, 1999), at 5-22, note 10.

Here, complainant claims she suffered discrimination when: she was

notified of management's plans to place her on an ODP plan (claim 1);

she learned that management was preparing to give her an unsuccessful

rating (claim 2); management called her to schedule a meeting to discuss a

�proposed disciplinary action� (claim 4); and her team leader threatened

to put her on AWOL (claim 5). We find that a fair reading of the claims

indicates that complainant believed the alleged actions were taken for

the purpose of harassing her. Therefore, the agency's dismissal of claims

(1), (2), (4) and (5) was improper.

Claims 3, 6, 8 and 9

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint 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,

.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).

Complainant claims she was discriminated against when: management asked

her to provide a statement regarding an incident with a co-worker (claim

3); a Team Leader yelled at her (claim 6); she was assigned to a Team

Leader with a reputation for aggression (claim 8); and ARX failed to

provide her with requested information (claim 9). While standing alone,

the events may fail to state a claim, however, as noted above, we find

that the alleged incidents are part of a broader claim of discriminatory

harassment. Complainant has alleged conduct in an ongoing pattern

of harassment, and therefore we find that claims 3, 6, 8, and 9 were

improperly dismissed.

Claim 7

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 Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). 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.

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 agency dismissed claim 7 for untimely Counselor contact.

The Commission disagrees, In essence, complainant's complaint can be

construed as a claim of harassment, as discussed above. The Commission

has previously 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 units the matters complained of. Meaney

v. Department of the Treasury, EEOC Request No. 05940169 (November 3,

1994). The record reflects that claims 1 - 6, and claims 8 and 9 address

a variety of issues relating to alleged harassment, i.e., threats to be

considered AWOL; confrontations with agency officials; and preparations

to give her an unsuccessful performance rating. We find that claim 7

further illustrates complainant's contention that she was subjected to

harassment and, therefore, is part of an alleged continuing violation.

See Drake v. Department of the Air Force, EEOC Request No. 05970689

(March 29, 1999).

In summary, the agency's decision dismissing claims 1 - 9 is REVERSED.

The complaint 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 (M0900)

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 11, 2001

__________________

Date