01A13720_r
07-18-2002
Vernell B. Kilpatrick, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Vernell B. Kilpatrick v. Department of the Army
01A13720
July 18, 2002
.
Vernell B. Kilpatrick,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A13720
Agency No. BPER0005A0190
Hearing No. 120-A1-4253X
DECISION
Complainant filed a timely appeal with this Commission from an agency
final action dated May 14, 2001, dismissing her 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.
In her complaint dated July 24, 2000, complainant alleged that she was
subjected to a hostile work environment on the bases of race (Black)
and in reprisal for prior EEO activity.<1> In an attachment to her
formal complaint, complainant identified the following specific incidents
of discrimination:
Complainant was not granted the opportunity to maintain discipline
in the work force, which in turn created a hostile work environment.
The hostile work environment led to complainant's demise as an effective
manager.
Complainant's supervisor failed to conduct non-biased investigations
and supported the allegations of subordinates and co-workers, which
led to major disciplinaryaction on complainant's behalf. Complainant's
supervisor failed to keep her abreast on major decisions for the program
and she was not visible in the program from December 3 - January 31.
Due to lack of support from her supervisor, and the potential for
violence within the workforce, the aid of the Post Commander and Person
A were sought. Complainant also received a lower evaluation.
The record reveals that complainant filed an amendment to her formal
complaint which was received by the agency on November 27, 2000. In the
amendment, complainant raised the following issues:
From the rating period of 1999 through September 21, 2000, complainant
had not been counseled regarding her performance but her first line
supervisor used personal problems she had with complainant, against her,
to take serious disciplinary actions for incidents complainant had not
been counseled on.
In December 1999, complainant received her annual evaluation which had a
lower rating of �Successful-Level 2" and complainant's supervisor refused
to review documentation which would support a higher rating. On April 18,
2000, complainant received her evaluation from her supervisor unchanged
and without her reviewing complainant's supporting documentation.
On May 5, 2000, complainant's supervisor denied her the opportunity to
perform her supervisory duties regarding four employees who complainant
was having problems with and was trying to take appropriate disciplinary
measures to correct or curtail their behavior.
On June 15, 2000, a 15-6 Administrative Investigation was initiated
against complainant without her knowledge for allegations that were false.
On August 17, 2000, complainant received a letter barring her from Fort
Eustis and Fort Story.
After the 180- day time frame for completing the agency investigation
passed, complainant requested a hearing before an EEOC Administrative
Judge.
On April 27, 2001, the AJ issued an Order of Dismissal. The AJ found
that the issue of the proposal of alternative discipline in lieu of a
thirty-day suspension was inextricably intertwined with complainant's
thirty-day suspension claim which was pending before the MSPB.<2> The
AJ stated that the issue might be offered to prove a chain of events
which might have supported a claim that the thirty-day suspension was
discriminatory. Additionally, the AJ determined that the remaining
incidents identified in complainant's complaint were untimely.
With regard to the issue of the Level 2 appraisal, the AJ noted that
complainant received the appraisal in December 1999; however, she failed
to contact an EEO Counselor until May 30, 2000, outside the applicable
limitations period. The AJ rejected complainant's argument that her
contact was timely since she contacted a counselor within forty-five days
of April 18, 2000, the date she received the unchanged appraisal from
her supervisor who denied her request to review new material and revise
the appraisal. With regard to the claim that her supervisory duties were
taken away on May 5, 2000, the AJ found that complainant did not mention
this incident to the EEO Counselor when she first sought counseling.
The AJ stated that complainant did not raise this incident until she
filed her formal complaint in July 2000, which is outside the limitations
period. With regard to the claims that complainant's supervisor created
a hostile work environment by hindering complainant's ability to supervise
her subordinates and did not support her management decisions and that the
supervisor aided the subordinates in their disrespectful manner towards
complainant, the AJ found that complainant did not list a single incident
that occurred within forty-five days of contacting a counselor. The AJ
notes that complainant raised additional incidents in her November 27,
2000 amendment to her formal complaint; however, the AJ found that all
those incidents occurred earlier than forty-five days before she filed
the amendment.
The agency issued a final action on May 14, 2001, adopting the AJ's
decision to dismiss complainant's complaint.
On appeal, complainant states that her complaint involves a claim
of hostile work environment harassment based on race discrimination.
Complainant claims that the alternative discipline proposed by management
is one of the alleged incidents of harassment. Complainant notes that
the issue before the MSPB is the thirty (30) day suspension case and
not the hostile work environment claim. Complainant states that the
remaining issues in her complaint were improperly dismissed as untimely.
With regard to the issue of complainant's December 1999 performance
appraisal, she states that the alleged discriminatory event is not the
giving of the lower performance rating, rather the discriminatory event is
the failure to review additional documentation which would have supported
a higher evaluation. Complainant states that she was not aware of this
until April 18, 2000, when the materials were returned to her unreviewed.
Complainant claims that the issue that her supervisory duties were taken
away on May 5, 2000, occurred within forty-five days of the date she
contacted the EEO Counselor on May 30, 2000. Complainant claims that
the Administrative Judge's decision failed to look at the case as a
hostile work environment claim.
In the EEO Counselor's report, the counselor notes that complainant
alleges that she was subjected to a hostile work environment. The report
mentions the alternative proposal in lieu of the 30-day suspension and the
1999 evaluation appraisal. According to the report, the counselor notes
that complainant also stated that her supervisor aided her subordinates
in their disrespectful behavior and does not support her management
decisions. The report states that the hostile work environment has
hindered complainant's ability to manage and supervise her subordinates
effectively.
The record contains a copy of complainant's informal complaint, faxed
to the EEO Office on June 8, 2000, in which complainant states that on
May 17, 2000, she received the alternative to traditional discipline in
lieu of the thirty-day suspension. Complainant explains that she was
subjected to a hostile work environment, and identified several alleged
incidents of harassment such as lack of support for disciplinary action
she proposed, being �blasted� for reporting acts of misconduct to her
supervisor, being verbally attacked by subordinates, receiving disparate
treatment in her performance apprisal and evaluation. As a remedy,
complainant requests that �all the harassment, humiliation, stress and
anxiety that current management and subordinates have caused� to stop.
The record contains two e-mails sent November 16, and November 26,
2000, by complainant to the EEO Office in which she clarifies the issues
identified in her formal complaint and her amendment. With regard to
issue (1), complainant states that she was not granted the opportunity
to maintain discipline within the workforce, which created a hostile
work environment from August 31, 1999, until August 17, 2000. With
regard to issue (2), complainant states that from August 31, 1999, to
November 1, 2000, complainant's supervisor failed to conduct non-biased
investigations, and supported all allegations made by subordinates,
co-workers, union officials and personnel management. Complainant cites
specific incidents occurring during this period, including the May 17,
2000 proposal to alternative discipline.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to or
clarifies the original complaint and could have reasonably been expected
to grow out of the original complaint during the investigation. See Scher
v. United States Postal Service, EEOC Request No. 05940702 (May 30,
1995); Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990). In the present case, complainant has alleged that she
was subjected to a hostile work environment as evidenced by the various
incidents identified in her July 24, 2000 complaint. We find that the
issues identified in complainant's November 27, 2000 amendment are like or
related to her original complaint in that they are additional incidents of
alleged harassment which occurred during the same approximate time frame
as the incidents identified in complainant's original complaint and were
allegedly committed by the same management officials.
Upon review, we find that the agency improperly dismissed complainant's
complaint for untimely EEO Counselor contact. The Commission finds that
the complainant has set forth in her formal complaint a timely complaint
of harassment. We find that complainant timely raised issue (5) with
the EEO Counselor. With regard to this issue, we note that complainant
is not challenging the December 1999 evaluation but is alleging that
the supervisor's refusal to review documentation on April 18, 2000,
in support of a higher rating, was a form of harassment. Additionally,
we note that issue (6) occurred within forty-five days of complainant's
EEO contact. As stated in the AJ's decision, complainant timely
raised with an EEO Counselor the issue that her supervisor had created
a hostile work environment by hindering her ability to supervise her
subordinates effectively and that the supervisor aided the subordinates
in their disrespectful manner towards complainant and did not support
her management decisions. As indicated in the record, complainant
subsequently clarified issues (1) and (2) to identify incidents occurring
within forty-five (45) days of her May 30, 2000 counselor contact.
Further, we find that the remaining incidents identified by complainant
are sufficiently like or related to the timely allegations as to warrant
consolidated investigation. Finally, with regard to the dismissal of
the issue of the proposed alternative discipline, we find that the AJ
incorrectly dismissed this issue for being inextricably intertwined with
complainant's thirty-day suspension which was pending before the MSPB.
Specifically, we find that the issue before the MSPB is the thirty (30)
day suspension case and not the hostile work environment claim.
Accordingly, the agency's decision to dismiss complainant's complaint is
REVERSED and the matter is REMANDED to the agency for further processing
in accordance with the Order below.
ORDER
The agency shall request that the Hearings Unit of the appropriate EEOC
District Office schedule a hearing. The agency is directed to submit
a copy of the complaint file to the EEOC District Office within 15
calendar days of the date this decision becomes final for a decision
from an Administrative Judge in accordance with 29 C.F.R. � 1614.109.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the EEOC District Office. After receiving a decision from the EEOC
Administrative Judge, the agency shall issue a decision in accordance
with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 18, 2002
__________________
Date
1We note that neither the AJ's decision
nor the agency final action specifically identify the issues raised in
complainant's complaint. In the present decision, the Commission defined
the issues based on a review of complainant's formal complaint and the
subsequent amendment to her complaint.
2Based on a review of the record, we find that this incident is part of
issue (2) as identified above by the Commission.