01984278
06-15-1999
Uta E. Acker, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Uta E. Acker v. Department of the Army
01984278
June 15, 1999
Uta E. Acker, )
Appellant, )
)
v. ) Appeal No. 01984278
) Agency No. AVEJFO9802I0090
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On May 6, 1998, the Commission received an appeal from appellant from the
agency's April 1, 1998 final decision (FAD), which dismissed appellant's
March 6, 1998 formal EEO complaint for failure to state a claim;
untimely EEO Counselor contact and lack of pre-complaint counseling;
and mootness and/or lack of ripeness.<1> For the reasons that follow,
the Commission sets aside the FAD. We find the agency's response to
appellant's appeal fails to persuade us to the contrary.
We find, from our review of the entire record, as well as the arguments
on appeal including those not expressly addressed herein, that the agency
has not properly defined appellant's complaint. Smith v. U.S. Postal
Service, EEOC Request No. 05921017 (April 15, 1993). We also find
the agency has not met its burden of providing a clear record with
sufficient evidence to support the FAD. Hines v. U.S. Postal Service,
EEOC Appeal No. 01923566 (May 13, 1993); EEO Management Directive (MD)
110 (October 22, 1992), Ch. 5, �VIII (A); Henry v. U.S. Postal Service,
EEOC Request No. 05940897 (May 18, 1995). We find these deficiencies
require that we remand this case, for reasons we now discuss.
The salient facts appear to be the following: appellant, a Program
Activities Coordinator (PAC) in the Human Resources Directorate (HRD)
at the agency's Intelligence Center (USAIC) and Fort Huachuca, Fort
Huachuca, Arizona, initiated EEO contact on December 4, 1997, according
to the EEO Counselor's report (ECR).<2> She filed a formal EEO complaint
dated March 6, 1998, alleging discrimination based on national origin
(German) and reprisal, in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq., in connection with
certain specified claims.<3>
Neither the FAD nor appellant's complaint were entirely clear. The FAD
defined appellant's issues, the framing of which appellant appears not
to dispute on appeal, as follow:
(a) management accused appellant of being incompetent for allegedly
refusing to accept delivery of a package and the bowling alley lost
money as a result of her actions;
(b) appellant's request for reassignment to another agency[<4>] was
denied because she was not working in the civilian personnel field;
(c) appellant was informed by the Director of Human Resources [of the
Division or Directorate of Human Resources<5>] that her position would
be abolished effective March 1, 1998;
(d) appellant was not placed in the priority placement program (PPP), thus
precluding her from competing for civilian positions that have allegedly
been opened since she was informed her job was going to be abolished;
(e) appellant was denied a promotion as she had outlined in a prior
complaint, and when management allegedly was undoubtedly working towards
downgrading her position or to terminate her from government service.
The FAD dismissed all the aforesaid allegations for failure to state a
claim. The FAD also dismissed allegations (a) for untimely EEO Counselor
contact, and (c) for mootness. Finally, the FAD dismissed allegation
(e) for appellant's purported failure to raise that issue during EEO
counseling. The FAD declared, in particular, that appellant had failed
to show how she was injured by the agency's action in allegation (a).
With regard to allegation (b), the FAD averred that "[t]he allegation
of denial of promotional opportunity for positions outside the Division
of Human Resources (DHR) are outside the purview of the Director, DHR."
The FAD also stated, as to allegation (b), that appellant had failed
to provide the agency with enough information pertaining to "the other
positions, such as what positions were advertised, whether [appellant]
applied for any of them, who kept her from applying for them, or whether
the positions were filled by someone else."
The FAD found allegation (c) to be premature, finding that "Given the date
of the proposed personnel action and chances of [appellant] exercising
[her] bumping rights," the matter is not yet ripe. The FAD asserted that
once appellant's position had been abolished, she could file a complaint
as to that issue. With regard to issue (d), the FAD, purportedly relying
on information from the Civilian Personnel Office (CPO), stated that
CPO was "the responsible party for placing [appellant] in the [PPP],
not [appellant's] supervisors." The FAD added the following:
Since Fort Huachuca is taking pre-reduction-in-force [RIF] proceedings
and the Civilian Personnel Advisory Center (CPAC) is in the process
of attempting to locate positions to place [appellant] against,
thus, [appellant's] status is still informal, [sic] under a formal
REDUCTION-IN-FORCE[<6>] status, appellant would automatically be
registered in the [PPP].
Finally, as to allegation (e), the FAD determined that, although she had
raised the issue in her formal complaint, appellant had not previously
raised, with an EEO Counselor, her perception "that management was
working to downgrade [her] and to terminate [her] from federal service."
On appeal, appellant, through her representative, submits the following
contentions: as to allegation (a), she submits that she was "publicly
ridiculed and embarrassed," to harass her. She argues that, when
she complained of being falsely accused of losing money, her position
was abolished. She also asserts that other managers, who attended the
meeting where she was purportedly accused, "have shown concern" about
that accusation, particularly within the context of employing her.
Appellant indicates that these managers have informed "other managers
and supervisors," thus allegedly "severely" limiting appellant's ability
to be employed.
With regard to allegation (b), appellant contradicts the FAD's
determination that reassignment was beyond "the purview of the Director,
DHR." Appellant argues that the Director of DHR directly supervised CPO
at the time this matter arose. Appellant avers that she was the only
civilian personnel employee not provided with transfer rights. Appellant
contends that she submitted information concerning an individual (whom
she did not name on appeal) who was given the opportunity to transfer,
despite not being employed in the civilian personnel field.
As to allegation (c), appellant argues, inter alia, that her position was
to be abolished effective not later than March 1, 1998, as indicated on
a Standard Form 52, Request for Personnel Action, issued to her by the
Director of DHR on October 17, 1997.
Appellant's arguments are not clear with regard to issue (d), since they
do not appear to directly address the question of the alleged failure of
the agency to place her in the PPP, thereby allegedly precluding her from
competing for positions that purportedly had opened after notification of
her job being abolished. Appellant, referencing allegation (c), appears
to argue instead, for example, that she was not given consideration for
any Directorate vacancies. In addition, appellant appears to argue that
the agency should have followed formal RIF procedures in her case or
rescind the decision to abolish her position.
In response to appellant's appeal, the agency argues that appellant
has failed to show how the agency's action harmed her; failed to provide
adequate information pertaining to the positions she was allegedly denied;
alleged premature claims; and alleged a claim she had not brought to
the attention of an EEO Counselor.
It is within the context of examining the entire record on appeal, as
we indicated above, that we have found deficiencies requiring a remand.
We find unexplained, for example, the relationship between USAIC and the
Fort Huachuca activity, the agency's having appeared to present them as
separate entities. We also find ambiguous and, thus, misleading, the
parties reference to "another agency," to which appellant purportedly
unsuccessfully sought reassignment. We further find unclear appellant's
position within the agency prior to the time she was notified her
position was allegedly being abolished. In this regard, we find the
record unclear as to whether appellant's position was in fact abolished.
Although we find the record contains a Standard Form 52 requesting that
appellant's position be abolished, we find no evidence of a Standard
Form 50 (Notice of Personnel Action) indicating the agency had approved
appellant's position being abolished. The record is further obfuscated by
references to "pre"-RIF proceedings and appellant's "informal" status.
In addition, the record is not entirely clear as to whether there is a
distinction between the Division of Human Resources, and the Directorate
of Human Resources.
We further find the agency mischaracterized appellant's complaint
with regard to allegation (e), since the FAD itself conceded that the
question of the agency's failure to promote appellant had been raised
by her as an issue in a prior complaint. We find, in this regard, from
a fair reading of the record and appellant's complaint, that what the
agency termed allegation (e) was in fact background evidence and not
intended by appellant to be a "live" allegation. We find, for example,
that appellant specifically numbered four allegations in an attachment to
her formal complaint, with a final paragraph, which the agency assumed to
be allegation (e), which "allegation" we find to be conclusory in nature.
We also find the FAD deficient in appearing to dismiss allegation (a)
for untimely EEO Counselor contact, without providing reference to any
underlying facts or performing an analysis with regard to applicable law.
We find, in this regard, that the agency has failed to meet its burden of
"obtaining sufficient evidence to support a reasoned determination as to
timeliness, Guy, Jr. v. Department of Energy, EEOC Request No. 05930703
(January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992)). Moreover, where, as here, a complainant
alleges a pattern and practice of discrimination against her, an agency
is obligated to initiate an inquiry into whether any allegations untimely
raised fall within the ambit of the continuing violation theory. Id. In
the present case, we find the FAD failed even to allude to the continuing
violation theory, under which the normal time limit for contacting an EEO
Counselor may be suspended if a continuing violation is demonstrated.
Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989). A continuing violation has been defined as a series of
related acts, one or more of which falls within the limitations period.
Valentino v. U.S. Postal Service, 674 F.2d 56 (D.C. Cir. 1982). It is
also important, in determining whether a claim for a continuing violation
is stated, to consider whether appellant had any prior knowledge or
suspicion of discrimination and the effect of this knowledge. Sabree
v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396
(1st Cir. 1990). The key to a viable continuing violation complaint is
the interrelatedness of the acts that are alleged to be discriminatory.
Scott v. Claytor, 469 F.Supp. 22, 25 (D.D.C. 1978).
The FAD is hereby VACATED, and this matter is hereby REMANDED for further
processing consistent with this decision and applicable regulations.
The parties are advised that this decision is not a decision on the merits
of appellant's complaint. The agency shall comply with the Commission's
ORDER set forth below.
ORDER
The agency is ORDERED to process appellant's complaint in accordance
with 29 C.F.R. Part 1614 and instructions in this decision, with the
cooperation of appellant and her representative. Specifically, the
agency shall:
1. Schedule in writing a meeting between appellant and an EEO Counselor
so an agreement can be reached on the issues in appellant's March 6,
1998 complaint. After the meeting(s), the Counselor must issue a new
Counselor's report concerning the meeting(s) and defining the complaint.
Appellant shall not be required to refile her complaint of March 6,
1998. Although appellant shall be permitted to clarify her allegations,
she shall not be permitted to raise new allegations pertaining to her
complaint.
2. Ensure, with regard to her March 6, 1998 complaint, the appellant
shall identify in detail the facts of each and every allegation, and
bases of discrimination, with relevant dates of occurrence, and names and
titles of persons who allegedly discriminated against her; appellant shall
also distinguish those allegations she intends to be "live" allegations
from those allegations intended to be background evidence in support of
"live" allegations. In addition, appellant shall advise the agency as
to whether she is seeking compensatory damages in this matter.
3. The agency and appellant shall ensure that appellant's position
and employee status, at the time this matter arose, is clearly and
specifically identified, including the applicable unit, branch, division
or directorate which employed appellant at the time this matter arose
and the specific activity which employed her.
4. The agency and appellant shall ensure that the position and the
entity to which appellant allegedly was denied transfer is specifically
and clearly identified.
In addition, the agency and appellant shall ensure that all relevant
and necessary documents pertaining to this case are produced and that
they are complete, legible, and identified.
5. If an agreement cannot be reached on a definition of the issues in
appellant's complaint, then the agency shall issue a new final agency
decision (FAD) defining the complaint. Such a FAD must explicitly define
all the allegations in the complaint, i.e., the agency shall not dismiss
allegations, de facto, by failing to define or address allegations.
6. The agency shall notify appellant in writing of all allegations, if
any, it is accepting for investigation. If the agency wishes to dismiss
any allegations, then it must issue a FAD doing so. Such a FAD must list
all allegations being dismissed and provide the grounds for dismissal.
The FAD shall identify all issues to he adjudicated in appellant's
complaint, including those issues the agency is dismissing if any.
The FAD shall also contain appeal rights to the Commission.
7. The agency shall complete all the above actions, including the
issuance of the Counselor's report and FAD if there is disagreement as
to the issues in appellant's complaint and/or if the agency dismisses
appellant's complaint in whole or in part, within ninety (90) calendar
days of the date the Commission's decision becomes final in this matter.
8. A copy of the agency's letter to appellant arranging a meeting with
an EEO Counselor, and a copy of the acceptance letter and/or FAD issued
pursuant to instruction 6 above 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. �l6l4.604(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 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Appellant averred that she received the FAD on April 6, 1998. In the
absence of evidence to the contrary, we accept her appeal as timely. See
29 C.F.R. �1614.402 and .604, in pertinent parts.
2On appeal, appellant contends that she did not receive a copy of the ECR.
The agency shall ensure, on remand, that both she and her representative
are provided with copies of the ECR.
3It also appears appellant set forth a request for compensatory damages
as part of the relief sought in this case.
4The allusion to "another agency" is not clear. This language is also
used by appellant in her complaint. The EEO Counselor's report (ECR),
however, contains no such allegation. The two issues raised by appellant,
as identified in the ECR, were: (1) on October 6, 1997, the Chief of
the MWR Special Services Division publicly humiliated appellant when he
accused her of not signing for a delivery to the Directorate of Human
Resources; and (2) on October 15, 1997, the Director of Human Resources
informed appellant that her position was being abolished effective March
1, 1998. However, the ECR states that, by way of relief sought, appellant
"requested a position in the Civilian Personnel Operating Center [CPOC]
at Fort Huachuca, Arizona." In addition, as part of the inquiry for
her report, the EEO Counselor noted, inter alia, that the Director of
Human Resources had stated, regarding priority placement within CPOC,
that the CPO was "working on placing [appellant] in a position."
5It appears these terms are interchangeable.
6So in original.