01a01522
06-16-2000
Rosemary Takacs, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Rosemary Takacs, )
Complainant, )
)
v. ) Appeal No. 01A01522
) Agency No. 99-4256
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
The record indicates that complainant, a Supervisory Accountant, GS-13,
filed a formal complaint, dated June 28, 1999, alleging discrimination
based on sex (female) and in reprisal for prior EEO activity when she
was continuously harassed by her supervisor and subjected to a hostile
work environment in that:<1>
From February 1998 through September 1988, a male Division Chief received
a higher salary than she earned when she was serving as Division Chief;
From 1993 to 1998, she was held to a higher level of accountability than
male counterparts for the reporting of receipts, shipments, and changes
in state of treasury assets in the custody of the bureau;
In December 1998, her supervisor did not pursue necessary staffing
actions after agreeing to do so during a Labor Mediation;
In June 1998, she was not included in meetings or e-mail communications
relating to the Personnel Resource Utilization Committee;
In August and November 1998, she was required to obtain sufficient
computer skills to provide guidance to her staff;
From 1993 to 1998, her supervisor utilized her staff without her
permission;
In mid July 1998 and September 1998, her supervisor extended her �special
assignment� of managing two divisions;
During the period April 1998 to April 1999, her supervisor did not offer
her many opportunities to serve as Acting Superintendent;
In December 1998, her supervisor did not arrange for a desk audit
classification review for her position;
From June 1998 to January 1999, her supervisor relegated her division
to a construction trailer;
From June 1998 to January 1999, her request for a fax machine was denied
while her division was in the trailer;
From June 1998 to January 1999, her requests for leather gloves for her
material handling staff were denied until the Office of Occupational
Safety intervened;
In October 1998, her request for the reassignment of two members of her
staff who were on temporary duty assignments in Washington, D.C. was
denied;
In November 1998, her supervisor tolerated a male manager's use of
inappropriate language to a female representative of the computer system
implementation;
From 1993 to December 7, 1998, she was required to be a direct supervisor
of her staff without allowing her subordinate managers;
From February 1998 to the present, her supervisor assigned her an
oppressive work load without breaks;
In March 1998, June 1998, and September 1998, she was not allowed to
attend the quarterly Manufacturing Excellence Meetings in Washington,
D.C.;
In May 1998, her supervisor denied her requests for furniture, laptop
computer and color printers;
In December 1998, her supervisor required her to write position
descriptions for positions she wanted filled or reclassified;
From June 1998 to January 1999, she was provided inferior toilet
facilities for her and her staff;
In October 1998, her supervisor divided the review of 70 procedures
relating to the computer system and reorganization between her and a
Black male manager;
In May 1998, her supervisor encouraged her to serve as Inventory
Management Division interim manager, thereby making her ineligible to
apply for the position under the unfair advantage rules;
In mid 1997, her supervisor removed production and administrative manager
positions;
In August 1998, her supervisor reassigned duties previously assigned to
Production and Inventory Control to a management intern;
In August 1998, her supervisor failed to upgrade her staff;
In November 1998, her supervisor distributed an e-mail in which he wrote
that he was �extremely disappointed� in her;
In June 1998 and January 1999, the supervisor did not provide assistance
in the archiving and condensing of files when she moved to and from the
trailer;
In September 1998, the supervisor wrote sarcastic remarks in her annual
performance review;
In October 1998, the supervisor removed her from the position of Site
Manager without an explanation;
In November 1998, the supervisor re-appointed her as Site Manager for
the consolidated information system;
In January 1999, the supervisor ignored her efforts and those of other
female supervisors in giving recognition for the EEOC award;
From May 1998 to September 1998, the supervisor overrode decisions she
made as Chair of Inventory Management;
From August 1998 to November 1998, the supervisor required her to provide
training in �state of art� methods;
From February 1998 to September 1998, the supervisor required her to
manage multiple divisions and perform duties of another division; and,
In May 1998, the supervisor did not include her in a training trip to
Florida; and from May 1998 to August 1998, he fabricated other training
lists to show that she was included.
The record contains complainant's letter dated February 27, 1999, which
was addressed to an agency Equal Opportunity Manager. In the letter,
complainant stated that she previously contacted the Equal Opportunity
Manager on September 23, 1998, which led her to utilize an unsuccessful
mediation process within the agency with regard to the matters, and
she wanted to file a complaint. In response, the Equal Opportunity
Manager stated in her letter dated March 9, 1999, that during their
meeting in September 1998, she told complainant about utilizing the EEO
complaint process if complainant had claims of discrimination. The Equal
Opportunity Manager further stated that complainant, specifically,
indicated to her that she did not have any claims based on discrimination
and she then suggested the agency's mediation process. In that letter,
the Equal Opportunity Manager advised complainant to contact an EEO
Counselor to begin the informal complaint process, and provided several
names of EEO Counselors, including their phone numbers.
Thereafter, in her letter dated April 12, 1999, complainant requested EEO
counseling to an identified EEO Counselor with regard to her complaint.
The record contains a copy of complainant's supervisor's note dated
December 7, 1998, which indicates that during their mediation meeting,
complainant raised her concerns about her promotion, her staff, and
working conditions. However, there is no indication that complainant
raised any allegations of discrimination during the mediation. The record
also contains a copy of an agency managerial official's e-mail dated
March 9, 1999, indicating that on January 12, 1999, complainant's office,
through complainant's staff, received a fax machine as a result of
the mediation. The record also contains a copy of the material/service
receiving and inspection/acceptance report evidencing such receipt.
In its decision, the agency stated that complainant did not contact an EEO
Counselor with regard to her complaint until April 15, 1999; thus, all of
the claims in the complaint (except claims (8) and (16)) were untimely.
With regard to claims (8) and (16), the agency stated that they were
too vague and ambiguous to process, thereby, failing to state a claim.
In its decision, the agency noted that complainant resigned from her
position with the agency on August 6, 1999.
On appeal, complainant does not raise any new contentions.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
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 McGivern v. United States Postal
Service, EEOC Request No. 05901150 (December 28, 1990); Starr v. United
States Postal Service, EEOC Appeal No. 01890412 (April 6, 1989).
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, 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). In order to
establish a continuing violation, the complainant must show that he/she
did not know, could not have reasonably known, and could not have
reasonably been expected to know of the discrimination. See Wallace
v. Department of Justice, EEOC Appeal No. 01922669 (December 15, 1992).
The agency stated in its decision that complainant did not contact an EEO
Counselor with regard to her complaint until April 15, 1999. However,
after a review of the record, the Commission finds that complainant
initiated EEO counseling with regard to her complaint when she sent her
letter dated February 27, 1999, to the Equal Opportunity Manager, clearly,
indicating her intent to proceed with the EEO complaint process. Although
complainant contends that she initiated EEO counseling with regard to
her complaint on September 23, 1998, when she met and discussed the
matters with the Equal Opportunity Manager, the record does not support
this contention. The Equal Opportunity Manager denied that complainant
ever raised any claims of discrimination or intent to pursue the matters
through the EEO complaint process during their meeting. It appears that
although complainant raised her concerns with regard to her promotion,
her staff, and working conditions to the Equal Opportunity Manager during
their meeting, there is no evidence in the record that she intended
to initiate EEO counseling. Rather, complainant decided to utilize
the mediation process in order to resolve the matters. Furthermore,
according to complainant's supervisor's note, complainant did not raise
any allegations of discrimination during the mediation.
The Commission finds that since the alleged incidents of claims (1)
through (7), (9), (13) through (15), (17), (18), (19), (21) through
(26), (28) through (30), and (32) through (35) occurred in or prior to
December 1998, complainant's February 27, 1999 EEO Counselor contact was
beyond the 45-day time limit. With regard to claim (11), the record,
undisputed by complainant, indicates that she, through her staff, received
the alleged fax machine on January 12, 1999. Thus, the Commission finds
that complainant's February 27, 1999 EEO Counselor contact with regard
to the subject claim, which occurred from June 1998 to January 11, 1999,
was untimely. With regard to the remaining claims of the complaint, i.e.,
claims (8), (10), (12), (16), (20), (27), and (31), the Commission finds
that complainant's EEO Counselor contact with regard to the portions
of these incidents which occurred on or prior to January 12, 1999,
is untimely.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)) provides that
prior to a request for a hearing in a case, the agency shall dismiss
an entire complaint that fails to state a claim pursuant to 29 C.F.R. �
1614.103. 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).
The agency stated, in its decision, that claims (8) and (16) were too
vague and ambiguous, thereby, failing to state a claim. Upon review,
the Commission finds that complainant clearly indicated that the alleged
incidents in claims (8) and (16) occurred from April 1998 to April
1999, and February 1998 to the present, respectively. Specifically,
complainant alleged that these incidents involved the denial of many
opportunities to serve as Acting Superintendent and her being subjected
to an oppressive work load. Since these incidents involved assignments
and working conditions which allegedly affected complainant's employment,
the Commission finds that claims (8) and (16) state a claim. However, as
discussed above, the Commission, nevertheless, finds that complainant's
EEO Counselor contact with regard to the portions of claims (8) and
(16), which occurred on or prior to January 12, 1999, is untimely.
Accordingly, the agency's decision dismissing claims (1) through (7),
(9), (11), (13) through (15), (17), (18), (19), (21) through (26), (28)
through (30), and (32) through (35) is AFFIRMED. The agency's decision
dismissing the portions of claims (8), (10), (12), (16), (20), (27), and
(31), which occurred on or prior to January 12, 1999, is AFFIRMED. The
agency's decision dismissing the remaining portions of claims (8), (10),
(12), (16), (20), (27), and (31), which occurred on or after January 13,
1999, is REVERSED and these claims are REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
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 (T0400)
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:
June 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 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.