01994715
03-03-2000
Rosemary N. Smith, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Rosemary N. Smith, )
Complainant, )
)
v. ) Appeal No. 01994715
) 01994716
Togo D. West, Jr., ) Agency No. 991240
Secretary, ) 983633
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On May 16, 1999, complainant filed timely appeals with this Commission
from two final agency decisions (FADs) pertaining to her complaints 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>
Complainant alleged that she was discriminated against when:
she was subjected to harassment based on her race (Black) and reprisal
(prior EEO activity) when she requested a door and lock for her office
in September 1997, but did not receive them until November 1997 (Appeal
No. 01994715); and
she was subjected to retaliatory harassment (prior EEO activity) on
February 19, 1999 when she was warned that the wearing of a headdress
was in violation of the dress code policy (Appeal No. 01994716).
For purposes of judicial economy, Appeal No. 01994715 is hereby
consolidated with Appeal No. 01994716.
The agency dismissed both of these complaints pursuant to EEOC Regulation
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as � 1614.107(a)(1)), for failure to state a claim, noting
that complainant did not established that she suffered a personal loss
with respect to a term, condition or privilege of employment.
ANALYSIS AND FINDINGS
Turning first to Complaint No. 1, a review of the file reveals that
although complainant alleged that her November 1997 receipt of a door and
lock was preceded by a two-year delay,<2> complainant did not initiate
contact with an EEO Counselor until May 15, 1998. 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). "The time period is triggered as soon
as a complainant suspects discrimination and the complainant may not wait
until all supporting facts have become apparent." Whalen v. Department
of Justice, EEOC Request No. 05960147 (September 18, 1997).
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 case at hand, even assuming complainant did
not suspect discrimination until November 1997, she initiated contact
with an EEO counselor well beyond the 45-day time period and offers no
explanation for her delay. Accordingly, Complaint No. 1 is dismissed
for failure to timely initiate contact with an EEO counselor.
Complaint No. 2 does not state a claim of harassment. In Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court
reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57,
67 (1986), that harassment is actionable if it is sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
The Court explained that an "objectively hostile or abusive work
environment" is created when "a reasonable person would find [it]
hostile or abusive: and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
Here, complainant indicated that the Acting Administrative Assistant to
the Chief of Staff (AC), had harassed her in the past, yet she provided no
details of these past events and described only the headdress incident.
This incident is not sufficiently severe or pervasive to state a claim
of harassment.
We note that complainant's two complaints could be interpreted as
describing an ongoing pattern of harassment at the hands of AC, who was
named as one of the responsible management officials in both complaints.
Even assuming, however, that this is the case and that the untimeliness
of Complaint No. 1 could be excused under the theory of continuing
violation,<3> the issues raised in Complaint Nos. 1 and 2 together are
not sufficiently severe or pervasive to state a claim of harassment.
A review of the record reveals, however, that complainant may have
intended to raise a claim of disparate treatment in relation to Complaint
No. 2.<4> While the complaint itself lists �harassment� as the issue,
the evidence complainant submits on appeal concentrates on AC's treatment
of similarly situated co-workers who allegedly violated the dress code.
Moreover, it is clear from the counselor's report that complainant raised
this issue of dissimilar treatment with the counselor, noting that other
people under the supervision of AC violated the dress code during the
time period in question, but that only she was given a warning.
Commission precedent holds that the Commission has the authority
to �reframe charges and use available materials and information to
articulate lay complainant's charges.� Blue Bell Boots, Inc. v. EEOC, 418
F.2d 355, 357 (6th Cir 1969). Rajpal v. United States Postal Service,
EEOC Request No. 05920037 (May 19, 1992).� Garrett v. United States
Postal Service, EEOC Appeal No. 01963466 (November 29, 1996), request
for reconsideration denied, EEOC Request No. 05970260 (April 30, 1998).
We therefore find that in addition to asserting a claim of harassment,
complainant intended to raise a claim of disparate treatment based on
the warning she received.
While a verbal warning alone is not sufficient to state a claim, there is
some indication in the file that this warning was noted in complainant's
record. Specifically, the counselor's report notes that complainant
was given a warning about violating the dress code and that it was �so
noted.� The record also contains two reports that describe the warning
and appear to have been placed in complainant's file. The Commission
has held that written warning notices that are placed in a complainant's
file constitute a direct and personal deprivation sufficient to render
an individual aggrieved. See McAlhaney v. United States Postal Service,
EEOC Request No. 05940949 (July 7, 1995). The agency's decision to
dismiss Complaint No. 2 was therefore improper.
CONCLUSION
Accordingly, the agency's decision to dismiss Complaint No.1 is affirmed.
The agency's decision to dismiss Complaint No. 2 is reversed and the
complaint is remanded for further processing in accordance with this
decision and applicable regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded complaint 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 complaint 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 an
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 (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). 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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
03/03/00 ________________________________
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 Equal Employment Assistant 1 On 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.
2 While the agency stated that complainant's receipt of a door and lock
was only delayed by two months, documents in the file indicate that she
had submitted her request as early as two years prior to November 1997.
3 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 Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999); McGivern v. U.S. Postal
Service, EEOC Request No. 05901150 (December 28, 1990).
4 While the record also reveals that complainant may have intended
to raise a disparate treatment claim in Complaint No. 1, because we
dismissed that complaint for untimely counselor contact, we need not
address this issue.