01986743
03-16-2000
Margery Burfield, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Margery Burfield v. Department of the Interior
01986743
March 16, 2000
Margery Burfield, )
Complainant, )
)
v. )
) Appeal No. 01986743
Bruce Babbitt, ) Agency No. FWS-98-015R2
Secretary, )
Department of the Interior, )
Agency. )
____________________________________)
DECISION
On September 1, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.<1> The Commission accepts the appeal in accordance
with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).
Complainant contacted the EEO office on November 18, 1997, regarding
claims of discrimination based on sex, age, and reprisal. Informal
efforts to resolve complainant's concerns were unsuccessful. Accordingly,
on April 8, 1998, complainant filed a formal complaint.
The agency framed the claims as follows:
In 1996, complainant requested that her position be reclassified and
after promising to do so, her Refuge Manager did not submit the required
paperwork to initiate the action;
In April 1996, a $950.00 award was given to a male colleague for his
work on the network telephone system, in which she allegedly did most
of the work;
On February 26, 1997, complainant was forcibly restrained, threatened, and
intimidated when she reported an illegal contract to CGS;
On May 20, 1997, complainant was denied training when a male was chosen
to replace her;
On November 6, 1997, complainant received her annual performance
evaluation with a rating of "not achieved" in all 5 of the critical
elements; and
On November 12, 1997, complainant received an e-mail message regarding
"Early Retirement" from the Refuge Manager.
The agency issued a FAD dismissing the complaint for untimely counselor
contact, mootness, and failure to state a claim. Specifically, the
agency determined that complainant's November 18, 1997 counselor contact
for claims 1, 2, 3, and 4 was beyond the forty-five day time limitation.
Further, the agency noted that claims 1 and 2 were never raised with a
counselor as required. Claim 5 was dismissed as moot. The FAD indicated
that on April 8, 1998 the agency changed complainant's 1997 performance
evaluation to reflect a rating of "Achieved" in all critical elements ,and
complainant had not sought compensatory damages. The FAD also stated that
claim 6 failed to state a claim. The agency determined that complainant
did not demonstrate how the e-mail message regarding "Early Retirement"
resulted in a harm to a term, condition, or privilege of her employment.
On appeal, complainant argues that claims 2 and 3 were timely raised,
as the agency cited incorrect dates. According to complainant, claim 2
occurred in April 1997 (instead of April 1996) and claim 3 occurred on
February 26, 1998 (instead of 1997). Further, complainant contends that
claims 1 and 4 are part of a continuous pattern of discrimination and
therefore should not have been dismissed for untimely counselor contact.
With respect to claim 5, complainant argues that she has not received
an adequate remedy, noting that although her evaluation was changed
she had to file the instant complaint to achieve the correction.
Complainant also contends that claim 6 (e-mail message) is part of a
series of discriminatory acts committed by her supervisor.
In response, the agency reiterates the conclusions made in the FAD and
indicates that EEO posters describing the forty-five day time limitation
are on display. Further, the agency reviewed the claims to ascertain
whether they were part of a continuing violation, and determined that
there were no timely allegations, thereby preventing use of the theory.
Claims 1, 2, 3, and 4
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as 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.
In the instant case, complainant argues that claim 2 occurred in April
1997, rather than in April 1996. However, even if the alleged event
occurred one year later, complainant's contact on November 18, 1997 is
still untimely. Accordingly, the dismissal of claim 2 was proper and
is AFFIRMED.
Similarly, complainant argues that the date for claim 3 was also
inaccurately stated by the agency. According to complainant, claim 3
occurred on February 26, 1998 rather than in 1997. A review of the record
reveals, however, that on her formal complaint the complainant stated that
the alleged incident occurred in 1997. Further, the Counselor's Report
does not reflect a 1998 incident. If complainant is referring to a new
claim, she is advised to seek counseling at the EEO office. Therefore,
we find that the agency's dismissal of claim 3 was proper and is AFFIRMED.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain claims 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 Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States
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, complainant 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 complainant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
With regard to claims 1 - 4, there is no timely raised claim which
purportedly occurred within forty-five days of complainant's initial EEO
Counselor contact in November 1997. The Commission therefore determines
that these claims cannot be construed as part of a continuing violation.
Moreover, we find that complainant has not presented sufficient reason
to waive the timeliness requirement on other grounds. Accordingly,
the Commission AFFIRMS the agency's dismissal of claims 1 and 4 for
failure to timely contact an EEO Counselor.
Claim 5
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(5)) provides for the dismissal of a
complaint when the issues raised therein are moot. To determine whether
the issues raised in complainant's complaint are moot, the fact finder
must ascertain whether (1) it can be said with assurance that there is
no reasonable expectation that the alleged violation will recur; and
(2) interim relief or events have completely and irrevocably eradicated
the effects of the alleged discrimination. See County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC
Request No. 05970343 (July 10, 1998). When such circumstances exist,
no relief is available and no need for a determination of the rights of
the parties is presented.
The record reveals that complainant's evaluation was changed from ratings
of "not achieved" to "achieved" in all five of the critical elements,
the remedy requested by complainant. On appeal, complainant acknowledges
that her evaluation was changed, but contends that she has not received
"an adequate remedy." We note that complainant has not presented evidence
of any other effects resulting from the performance evaluation, and
therefore are not persuaded by complainant's contention on appeal.
Accordingly, the dismissal of claim 5 as moot is AFFIRMED.
Claim 6
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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).
In claim 6, complainant alleges that she was discriminated against when
she received an e-mail regarding early retirement. The Commission
finds that complainant has not established how the alleged incident
resulted in a harm or loss regarding a term, condition, or privilege of
her employment. We agree with the agency that the alleged incident did
not render complainant an "aggrieved" employee. Further, we find that
claim 6 is not sufficient to state a claim of discriminatory harassment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). Claim 6 was properly dismissed for failure to state a claim.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED. Because of our disposition of the claims as
discussed above, we find it unnecessary to address the agency's decision
to dismiss some of the claims on alternative grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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. � 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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. If you
file a request to reconsider and also file a civil action, 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:
March 16, 2000
____________________________
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 Equal Employment Assistant
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.