01983846
06-09-1999
Kawina Brockington, Appellant, vs. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Kawina Brockington v. Department of Housing and Urban Development
01983846
June 9, 1999
Kawina Brockington, )
Appellant, )
) Appeal No. 01983846
vs. ) ) Agency No. FW 97 17
)
Andrew M. Cuomo, )
Secretary, )
Department of Housing and Urban )
Development, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Appellant 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. The appeal is accepted in accordance with EEOC
Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim and untimely contact with an EEO
counselor.
BACKGROUND
Appellant filed a formal complaint on December 11, 1996, alleging
discrimination on the bases of race (White) and sex (female) when,
among other things:
(1) on June 28, 1996, management posted a vacancy announcement for the
permanent position of Management Analyst (Budget) with the intention of
placing a black employee in that position;
(2) from December 1995 to January 1996, her supervisor told untruths
about her;
(3) in his absence, her supervisor allowed a black GS-11 employee to
serve in an Acting capacity even though she, appellant, was a GS-13
(this action gave the black employee additional leverage on her job
application);
(4) on September 30, 1996, the date her reassignment was supposed to
become effective, did not become effective until November 10, 1996;
(5) she and her white female counterparts were constantly ignored by
her supervisor while the black females were not;
(6) her supervisor and others never gave her any "peace of mind;"
(7) her supervisor came to see the white females only a few times during
the first nine months they were under his supervision;
(8) her supervisor refused to give her any new work assignments and
provide her with guidance and training; and
(9) on August 8, 1996, she was not invited to an Administration staff
meeting;
In its final decision, the agency dismissed allegations (1) and (4)
for failure to state a claim upon concluding that those alleged actions
did not render the appellant an aggrieved employee. Allegations (2)
and (3) were dismissed for failure to comply with the applicable time
limits contained in 29 C.F.R. �1614.105(a)(1). The decision did not
address the rest of the allegations. This appeal followed.
ANALYSIS AND FINDINGS
Failure to State a Claim
The Commission has held consistently that where, as here, an agency
is confronted with claims involving multiple allegations, it should
not define the issues in the complaint individually if an analogous
theme unites the matters contained therein. Instead, the agency should
look at these incidents, in the aggregate, as a claim of harassment.
See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994).
After a careful review of the file, the information contained therein
reveals that the agency erroneously defined the allegations in an
individual manner. Appellant's allegations concerned an "analogous theme"
or agency objective that united the alleged discriminatory acts set forth
in the complaint, i.e., denying her the opportunity for advancement.
Consequently, when allegations (1) and (4) are viewed in the context
of harassment, they state a claim and, thus, the agency's decision to
dismiss them for failure to state a claim was improper.
Failure to Contact Timely an EEO Counselor
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 of Louisiana State Univ.,
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).
In dismissing allegations (2) and (3), the agency failed to conduct a
continuing violation analysis. However, where, as here, a complainant
alleges recurring incidents of harassment, "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 (December 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."
Additional Allegations
As we pointed out in the "Background" part of this decision,
the agency failed to consider some of the appellant's allegations.
These allegations must be addressed as they are an important part of
appellant's harassment/continuing violation claim.
CONCLUSION
Based on the foregoing, the agency's decision to dismiss appellant's
complaint was erroneous and is, therefore, REVERSED. The complaint is
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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 the appellant requests a final decision
without a hearing, the agency shall issue a final decision within 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:
June 9, 1999
____________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations