01994340
05-19-2000
Karla K. Long, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency
Karla K. Long, )
Complainant, )
) Appeal No. 01994340
v. )
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency )
)
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision concerning 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> The final agency decision was dated April
13, 1999. The appeal was postmarked on May 3, 1999. Accordingly,
the appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614. 402 (a)),
and is accepted in accordance with 64 Fed. Reg. 37,644, 37, 659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
ISSUES PRESENTED
The issues on appeal are: 1) whether the agency properly dismissed one
of the issues in complainant's complaint as being a proposal to take
a personnel action; 2) whether the agency properly dismissed all the
issues in complainant's complaint on the grounds that she failed to
state a claim, and 3) whether the agency properly dismissed all the
issues in complainant's complaint on the grounds that she contacted an
EEO counselor in an untimely manner.
BACKGROUND
Complainant filed a formal complaint on November 4, 1998. She alleged
that, beginning in May 1998, she was subjected to discrimination on the
basis of sex (female) when:
1) A-1, her supervisor, informed employees that there was no one person
who would not be effected by downsizing;
2) A-1 informed people that over the years he had gotten rid of Assistant
Chiefs;
3) A-1, she maintained, wanted her to be his servant;
4) A-1 abused her for years;
5) she would have a confrontation with a male, A-1 stated that it was
because she was a female;
6) in June 1998, after explaining what happened between herself and
the Chief of IRM, A-1 told her it was because she was a woman and that
the Chief of IRM was an Iranian;
7) on April 9, 1998, she discussed her appointment as the VBA Logistic
Representative with A-1, and he made negatives comments to her;
8) A-1 told her that �he didn't have to put up with this b _ _ _ _ _
_ _.�
9) A-1 told her that she was �Miss high and mighty.�
10) she told A-1 that she was 40% service-connected disabled, he said to
her, �I could never work for you, if they RIF me, I cannot bump you now;�
11) in June 1998, during a disagreement between herself and A-1, he
stated �[a]ren't you going to start crying?� A-1 later came back and
apologized to her, upon which he hugged her. According to complainant,
she felt uncomfortable, but did not tell A-1 to stop; and
12) on September 23, 1998, A-1 entered her office and asked how her
mental health was, and then told her he was abolishing her job.
In its final agency decision (FAD), the agency, characterizing all of
the incidents as separate allegations of discrimination, dismissed all
of the above claims on the grounds that the complainant failed to show
that any type of personnel action occurred that would show she was an
aggrieved individual. The agency also dismissed claim (12) on the grounds
that A-1's comments were merely a proposed action or a preliminary step
to taking a personnel action. Finally, noting that the complainant did
not contact an EEO counselor until September 24, 1998, the agency also
dismissed all of complainant's claims on the grounds that she contacted
an EEO counselor in an untimely manner. This appeal followed.
ANALYSIS AND FINDINGS
At the outset, we find that the agency erred in dismissing claim (12) on
the grounds of untimely counselor contact. Since this incident occurred
on September 23, 1998, and complainant sought EEO counseling on September
24, 1998, complainant's counselor contact was clearly timely. Complainant,
in her complaint, indicated that A-1 had been her supervisor for about
10 years. According to complainant, in May 1998, A-1 discovered that her
service-connected disability rating was higher than his. Thereafter,
she maintained that A-1 �[b]egan to systematically harass [her] in a
number of ways.� This harassment, stated complainant, took various
forms, but she maintained that she was mostly abused verbally by A-1.
In June 1998, complainant indicated that A-1 became so abusive, during
a meeting, that she told him she would have to go to the Director of the
Medical Center. After which, she stated that A-1 �[b]egan a deliberate
campaign of making [her] position even more untenable.� In essence
complainant's complaint involves a single claim of ongoing harassment.
The Commission has previously held that 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 matters.
Drake v. Department of the Air Force, EEOC Request No. 05970689 (March
29, 1999); Ferguson v. Department of Justice, EEOC Request No. 05970792
(March 30, 1999). The agency, however, framed the issues of complainant's
complaint such that it fragmented the claim and characterized each
allegation as a separate and distinct claim. The agency's decisions
would have, in large part, been correct if complainant's allegations
were viewed by themselves; however, complainant claimed that she was
subjected to an ongoing pattern of harassment. In this context, she
states a claim. See Hatchett v. USPS, EEOC Request No. 05950758 (May
16, 1997). Therefore, these claims were improperly dismissed on the
grounds that they did not state a claim.
Pursuant to Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 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 agency dismissed claim (12) on the grounds set forth in �
1614.107(a)(5). A review of the record indicates that complainant argued
that claim (12) was a continuation of A-1's harassment. 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 the complainant 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. Upon review, we find that the agency's dismissal
of claim 12 was improper because complainant alleged that this incident
was part of a pattern of harassment.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days
of the effective date of the personnel action. The time requirement
for contacting an EEO counselor can be waived as to certain allegations
within a complaint when the complainant alleges a continuing violation,
that is, a series of related discriminatory acts, one of which falls
within the time period for contacting an EEO counselor. If one or more
acts falls within the time period for contacting an EEO counselor, the
complaint is timely with regard to all that constitute a continuing
violation, provided the acts are interrelated by a common nexus.
Verkennes v. Dept. of Defense, EEOC Request No. 05900700 (September
21, 1990). Furthermore, where a complainant has shown that his or her
timely incident of harassment is interrelated to incidents outside the
45-day time limit, the agency should not fragment complainant's claim
by dismissing specific identified incidents outside the 45-day time
limitation that are associated with or connected to the subject matter
and temporal scope of the complaint. See Howard - Grayson v. United
States Postal Service, EEOC Request No. 05990160 (December 3, 1999)
(finding that where timely and untimely actions are interrelated by a
common nexus or theme, a continuing violation exists).
We find that complainant has established a continuing violation.
Complainant maintained that all of her claims were the result of
A-1�systematically� harassing her. Thus, she provided the common nexus
or theme. We also find that claims (1) - (11) are clearly interrelated
to timely claim (12). Accordingly, the otherwise untimely incidents must
be accepted as part of a continuing violation. The agency's decision
to dismiss the claims contained in complainant's complaint was improper
and it is REVERSED. The complaint is REMANDED for further processing
in accordance with this decision and the ORDER below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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:
_05-19-00________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________
___________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.