01a43739
05-13-2005
Mary V. Waleski, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, (Food and Drug Administration), Agency.
Mary V. Waleski v. Department of Health and Human Services
01A43739
May 13, 2005
.
Mary V. Waleski,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
(Food and Drug Administration),
Agency.
Appeal No. 01A43739
Agency No. FDA-F-031-01
Hearing No. 100-A2-7505X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final decision (FAD).
The record reveals that complainant, a Supervisory Chemist, GS-14, at
the agency's Center for Food Safety and Applied Nutrition in Washington,
D.C., filed a formal EEO complaint on June 27, 2001, alleging that the
agency discriminated against her on the bases of sex (female) and age
(D.O.B. November 16, 1942) and in reprisal for prior EEO activity when:
(1) between the Spring of 1998 and June 27, 2001, more than half of her
supervisory duties were reallocated to non-supervisory, non-cosmetics
work while she was required to report to two first-line supervisors
instead of one;
between the Spring of 1996 and May 1, 2001, employees were transferred
in and out of her branch without consultation;
between November 2000 and March 15, 2001, members of her staff received
work assignments directly from other management officials who did not
consult with her first;
in November of 2000, her request for permission to do an outside activity
was denied;
between the Spring of 1998 and May 1999, she was forced to work in a
situation of potential violence in the workplace that endangered both
her safety and that of her branch;
in May of 1998, she and her staff were moved to a suite of windowless
offices, furnished in large part with �surplus� equipment, furniture,
computers, printers etc.;
on August 9, 1999, a notice was published in the Federal Register by
an employee outside of her Branch without her knowledge that concerned
one of the programs in her Branch; and,
each year since February 15, 1996 she has not received a cash award, time
off award or been selected to represent OCAC at cosmetics workshops,
seminars and/or conferences sponsored by various cosmetics industry
groups.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ dismissed issues (4), (5), (6),
(7) and (8) for untimely EEO counseling contact. The AJ found that the
actions complained of constituted discrete, isolated acts which should
have triggered complainant's awareness of any alleged discrimination.
Thereafter, complainant withdrew her request for a hearing and requested
a final agency decision. The agency found no discrimination with respect
to issues (1), (2) and (3).
On appeal, complainant contends that she was the only one of five Branch
Chiefs to be relocated to the Food Safety Initiative (FSI) and that two
male Branch Chiefs should have been relocated to FSI. With respect to
issue (2), complainant asserts that the agency did not circumvent other
male Branch Chiefs or those who had filed EEO complaints by giving
assignments to their employees. Concerning issue (3), the record
reveals that the transferring of her employees depleted her branch
and jeopardized her grade level. Complainant argues the merits of the
allegations that were dismissed for untimely EEO counseling contact.
In response, the agency requests that we affirm its FAD.
Initially, we will consider the AJ's dismissal of issues (4) though (8).
EEOC regulations state that an aggrieved individual must contact an EEO
counselor within 45 days of the alleged discriminatory occurrence. 29
C.F.R. � 1614.105(a)(1). 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. This time
limit may be extended, however, if the individual was unaware of the
time limits, if he did not know or could not reasonably have known that
discrimination had occurred, if he was prevented from timely contacting a
counselor by circumstances beyond his control, or for any other reasons
considered sufficient by the Commission. 29 C.F.R. � 1614.105(a)(2).
In addition, the 45-day time limit is subject to waiver, estoppel,
and equitable tolling. 29 C.F.R. � 1614.604(c).
If complainant fails to contact a counselor within the 45-day time limit
and does not present arguments or evidence that would support an extension
of this time limit, then the complaint may be dismissed pursuant to 29
C.F.R. � 1614.107(a)(2). Moreover, the Commission's regulations confer
upon the AJ the authority to dismiss complaints pursuant to 29 C.F.R. �
1614.107(a), either on their own initiative or upon an agency's motion
to dismiss a complaint. 29 C.F.R. � 1614.109(b).
Here, the record reflects that complainant contacted an EEO counselor
on April 16, 2001. With respect to issues (4), (5), (6) and (7),
the latest alleged discriminatory action occurred in November of 2000.
Complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO counseling contact.
Therefore, her contact with the EEO counselor occurred well beyond the 45
day time limit. Accordingly, the agency's final order dismissing issues
(4), (5), (6) and (7) is AFFIRMED.
Issue (8) concerns actions the agency took against the complainant
each year since February 15, 1996. However, complainant failed to
allege any specific discriminatory denial of cash award or time off
award nor did she alleged that she was not selected to represent
OCAC at cosmetics workshops, seminars and/or conferences at any time
within the 45 days preceding her EEO counseling contact. On appeal,
she does not contest the agency's dismissal of this issue. Therefore,
we find that complainant's contact occurred beyond the 45 day time limit.
Complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO counseling contact.
Accordingly, the agency's final order dismissing issue (8) AFFIRMED.
We find that issues (1), (2) and (3) should properly be framed as a
claim of harassment, comprised of the alleged incidents. Harassment of
an employee that would not occur but for the employee's race, color,
sex, national origin, age, disability, or religion is unlawful,
if it is sufficiently patterned or pervasive. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).
Whether the harassment is sufficiently severe to trigger a violation
of Title VII or te ADEA must be determined by looking at all of the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Harassment is
actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Here, complainant has identified incidents of alleged harassment that
occurred between the Spring of 1996, and June of 2001, which consisted
of her duties being relocated, required to report to two supervisors,
her subordinate employees being transferred in and out of her branch
without consultation by management and her subordinate employees receiving
assignments directly from other management officials. Complainant has not
submitted any evidence showing that the agency's actions were motivated
by her sex, age or in reprisal for her prior EEO activity. We also
find that these incidents are not so severe or pervasive as to entitle
complainant to relief under the federal employment discrimination laws.
See Lynch v. United States Postal Service, EEOC Appeal No. 01981027
(July 16, 1999).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
May 13, 2005
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date