01970429_r
04-02-1999
Wanda Freeman, Appellant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Wanda Freeman, )
Appellant, )
)
v. ) Appeal No. 01970429
) Agency No. 11-95-502
Aida Alvarez, )
Administrator, )
Small Business Administration, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint 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. Appellant received the final agency decision
on September 21, 1996. The appeal was postmarked October 18, 1996.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
1. The first issue presented on appeal is whether the agency properly
dismissed allegations 4, 5, 6, 8, 10 and 18 of appellant's complaint on
the grounds of failure to state a claim.
2. The second issue presented on appeal is whether the agency properly
dismissed allegations 22-27 of appellant's complaint on the grounds
of mootness.
3. The third issue presented on appeal is whether the agency properly
dismissed allegations 4-8, 11-12, 15-17, and 20-28 on the grounds that
appellant failed to contact an EEO Counselor in a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on September 14, 1995,
with regard to a letter from her immediate supervisor that stated his
intention to transfer her to Denver. On October 20, 1995, appellant
initiated contact with an EEO Counselor with respect to discriminatory
practices in the reassignment of employees to the Office of Finance
and Investment. Appellant initiated contact with an EEO Counselor on
October 25, 1995, with regard to a letter from her immediate supervisor
proposing to remove her because she refused to accept a transfer to
Denver. On October 30, 1995, appellant initiated contact with an EEO
Counselor with regard to a rating of �Fully Successful� that she received
on October 17, 1995. Four formal EEO complaints filed by appellant were
consolidated for processing as one complaint.<1> In the consolidated
complaint, appellant alleged that she had been discriminated against
on the bases of her race (black), sex (female), and in reprisal for her
previous EEO activity when:
1. On September 15, 1995, she received a letter from her immediate
supervisor that stated his intention to transfer her to Denver, and
requested that she either accept or reject the transfer.
2. Management refused to place her in a comparable position in the
Office of Chief Financial Officer in the Headquarters Office, despite
her request for placement, in lieu of transferring her to Denver.
3. On September 11, 1995, two white employees (one male, one female)
were reassigned from appellant's office to another office even though
they were not impacted by any displacement action.
4. As a general practice, white employees are given preferential
treatment over black employees with regard to management finding
comparable positions for displaced staff at Headquarters and in regard
to assignments, transfers, details, promotions, and reassignments.
5. A higher percentage of blacks and personnel over age 40 were in the
group targeted for transfer to Denver.
6. Efforts were not made by the Office of Chief Financial Officer, as
agreed, in finding displaced employees positions within the Headquarters
location.
7. Appellant was excluded from job opportunities that are available
and for which she qualifies.
8. The discriminatory practices against minorities continued from 1991 to
1995 in assignments, awards, ratings, training, details, reassignments,
promotions, etc., and from 1992 to 1995, minorities were subjected to
discriminatory practices in functional transfers/reorganizations.
9. On September 11, 1995, appellant learned that a white female received
a lateral transfer from the Office of Chief Financial Officer to the
Office of Finance and Investment, and she was not selected for the
position in the Office of Finance and Investment.
10. Management engaged in preselection, based on favoritism, of employees
for positions in the Office of Finance and Investment.
11. Announcements were not issued for recruitment actions.
12. She was retaliated against for informing the union, as well as other
agency officials, of office practices at the Office of Chief Financial
Officer, and for filing an EEO complaint when:
a. Appellant's immediate supervisor sent a letter to members of the
management board providing the names of employees in the Policy and
Procedures Branch who had not been placed in other offices in the agency,
thereby blackballing her by preventing her placement in a comparable
position at Headquarters because she has been very outspoken about
alleged discriminatory practices.
b. Management prevented her from participating in training
opportunities/advancement.
c. She informed outside sources of ongoing prohibited personnel
practices.
d. She made Congressional/legislative inquiries.
13. On October 25, 1995, she received a letter from her immediate
supervisor proposing to remove her from federal service because she
refused to accept a transfer to Denver.
14. Management failed to respond to her letter dated October 5, 1995,
requesting clarification regarding incorrect job title, series, and
organizational reference, whereas other employees received a reply to
their letters when inquiries were made by them in writing.
15. Management attempted to downgrade her to a GS-12.
16. From approximately August 1995 through December 1, 1995, management
has not issued her assignments.
17. Management reassigned less senior and less qualified employees to
protected positions from April 1995 to September 1995.
18. Management engaged in disparate treatment in the
placement/nonplacement of employees based on familial status. Appellant
was reassigned and refused assignment at the Headquarters location due
to her familial status.
19. On October 17, 1995, appellant received a performance rating
of �Fully Successful� for Fiscal Year 1995, rather than a rating of
�Outstanding�.
20. Appellant has been continually subjected to a hostile work
environment since 1991.
21. Appellant has received disparate treatment from 1992 through the
present with regard to the denial of office supplies.
22. Appellant was issued assignments by and under the guidance and
supervision of lower-graded employees.
23. Appellant was issued menial assignments and kept on them while
others were pulled off to work on more significant assignments.
24. Appellant was excluded from meetings.
25. Appellant's requests for performance indicators, a performance
contract, and a workstation change were denied.
26. Appellant received an unjustified assessment survey rating.
27. Appellant's position description does not support the type and
level of assignments given.
28. Appellant was denied a cash award.
In its final decision, the agency dismissed allegations 4-6 and 8 of
appellant's complaint on the grounds that these allegations failed to
state a claim. The agency determined with regard to these allegations
that appellant has not alleged that she suffered a specific adverse
employment action, but rather that management generally engages in
these practices. The agency stated that appellant has alleged adverse
personnel actions taken against unspecified black/minority employees,
unspecified employees over the age of 40, and unspecified employees in
the Office of the Chief Financial Officer, in general. Allegations 10
and 18 were also dismissed on the grounds of failure to state a claim.
Allegations 4-8, 11-12, 15-17, and 20-28 were dismissed on the grounds
that appellant failed to contact an EEO Counselor in a timely manner.
The agency stated that appellant failed to provide dates by which it could
determine whether these allegations fall within the 45-day limitation
period. The agency further determined that the continuing violation
theory is not applicable to allegations 4, 8, 17, 20 and 21 because
the alleged incidents involve distinct, isolated acts which should have
triggered appellant's awareness of the alleged discrimination. Finally,
allegations 22-27 were dismissed on the grounds of mootness. The agency
determined that the alleged violations are unlikely to recur in light of
the fact that appellant was removed from employment on February 12, 1996.
The agency reasoned that appellant's removal ended any possible continuing
effects of the alleged violations. Allegations 1-3, 9, 13-14, and 19
were accepted for investigation.
On appeal, appellant contends that the list of issues identified by
the agency does not identify her allegation of sexual harassment.
According to appellant, her allegation of sexual harassment applies
for the period from February 1995 to the present, whereas her different
claim of a hostile work environment concerns the period of 1991 until
the present. Appellant argues that the continuing violation theory
applies to the sexual harassment that was inflicted upon her.<2>
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (Apr. 21, 1994).
With regard to allegations 4-6 and 8, we find that these allegations set
forth a generalized grievance and, therefore, fail to state a claim.
Appellant failed to identify a specific harm with respect to these
allegations. Appellant cannot pursue a generalized grievance that
members of one protected group are afforded benefits not offered to
other protected groups, unless she further alleges some specific injury
to her as a result of the alleged discriminatory practice. See Warth
v. Seldin, 422 U.S. 490 (1975); Crandall v. Department of Veterans
Affairs, EEOC Request No. 05970508 (September 11, 1997) (allegation
that nurse practitioners in one unit received more favorable treatment
than nurse practitioners in other units was a generalized grievance);
Rodriguez v. Department of the Treasury, EEOC Appeal No. 01970736
(August 29, 1997)(allegation that there was an imbalance in favoring
of African-Americans, against Hispanics, in development and promotion
opportunities was a generalized grievance purportedly shared by all
Hispanic coworkers and therefore failed to state a claim). Accordingly,
the agency's decision to dismiss allegations 4-6, and 8 on the basis of
failure to state a claim was proper and is AFFIRMED.<3>
As for allegation 10, we find that the preselection of employees on the
basis of favoritism does not fall within the purview of the statutes
referenced above. Favoritism without discriminatory intent is not an
action that can be challenged through the EEO process. With regard
to allegation 18, we find that familial status is also not a protected
category under the statutes referenced above. Accordingly, the agency's
decision to dismiss allegations 10 and 18 on the basis of failure to
state a claim was proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(e) further states that the agency
shall dismiss a complaint that is moot. In County of Los Angeles
v. Davis, 440 U.S. 625 (1979), the Supreme Court held that where the
only matter to be resolved is the underlying issue of discrimination,
a case can be closed if:
(1) it can be said with assurance that there is no reasonable
expectation that the violation will recur; and
(2) interim relief or events have completely eradicated the
effects of the alleged violation.
Upon review, we find that allegations 22-27 of appellant's complaint
are not moot. Although appellant was removed from employment with the
agency on February 12, 1996, appellant seeks compensatory damages.
The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence that
she has incurred compensatory damages, and that the damages are related
to the alleged discrimination. Jackson v. USPS, EEOC Appeal No. 01923399
(November 12, 1992), request to reopen denied, EEOC Request No. 05930306
(February 1, 1993). Because appellant in this case makes a claim for
compensatory damages related to the alleged discriminatory conduct of the
agency, the agency should request that appellant provide some objective
proof of the alleged damages incurred, as well as objective evidence
linking those damages to the adverse actions at issue. See Benton
v. Department of Defense, EEOC Appeal No. 01932422 (December 10, 1993).
In light of appellant's claim for compensatory damages, the effects
of the alleged violations may not have been completely eradicated.
See Estafania v. Small Business Administration, EEOC Appeal No. 01940838
(April 18, 1994). Accordingly, the agency's dismissal of allegations
22-27 on the grounds of mootness was improper and is REVERSED.
EEOC Regulation 29 C.F.R. �1613.214(a)(1)(i) required that complaints
of discrimination should have been brought to the attention of the
Equal Employment Opportunity Counselor within thirty (30) calendar days
of an alleged discriminatory event, the effective date of an alleged
discriminatory personnel action, or the date that the aggrieved person
knew or reasonably should have known of the discriminatory event or
personnel action. EEOC Regulation 29 C.F.R. �1614.105(a)(1) extended
the time limit for contacting an EEO Counselor to forty-five (45) days
for actions occurring on or after October 1, 1992, the effective date
of the new regulations.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
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 McGovern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. 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, appellant 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 appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
In the present case, the record reflects that the agency dismissed
allegations 7, 11-12, 15-17, and 20-28 on the grounds of untimely EEO
contact. The agency stated that appellant failed to provide the dates
of the relevant incidents and that therefore, it could not determine
whether appellant's EEO contact was timely. According to the final
agency decision, the EEO Counselor attempted unsuccessfully on several
occasions, both during counseling and after counseling was terminated, to
get appellant to provide specific dates as to when the alleged incidents
occurred. However, we observe that the record lacks evidence to support
this position. The agency can not dismiss the relevant allegations
on the grounds of untimely EEO contact when the agency does not know
when the relevant incidents occurred. Appellant's alleged failure to
cooperate in providing the dates of the alleged incidents can be used as a
grounds for dismissal pursuant to 29 C.F.R. �1614.107(g), but only after
appellant has been afforded notice that the agency intends to dismiss
the relevant allegations if the requested information is not provided
within fifteen days of appellant's receipt of the agency's request.
Accordingly, the agency's decision to dismiss allegations 7, 11-12,
15-17, and 20-28 of appellant's complaint on the grounds of untimely
EEO contact is VACATED. These allegations are hereby REMANDED to the
agency for further processing in accordance with the Order below.
CONCLUSION
The agency's decision to dismiss allegations 4-6, 8, 10, and 18 on the
grounds of failure to state a claim is hereby AFFIRMED. The agency's
decision to dismiss allegations 22-27 on the grounds of mootness is
hereby REVERSED. The agency's decision to dismiss allegations 7, 11-12,
15-17, and 20-28 on the grounds of untimely EEO contact is hereby VACATED.
Allegations 7, 11-12, 15-17, and 20-28 are hereby REMANDED for further
processing in accordance with the Order below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
The agency shall forward to appellant a letter requesting that appellant
provide the specific dates of the incidents that constitute allegations
7, 11-12, 15-17, and 20-28. The agency shall inform appellant that
she has fifteen (15) days from her receipt of the letter to provide
the requested information. The agency shall notify appellant that it
will dismiss these allegations if she fails to provide the requested
information within the specified time period.
Thereafter, the agency shall decide whether to process or dismiss
allegations 7, 11-12, 15-17. and 20-28 of appellant's complaint.
29 C.F.R. �1614.106 et seq. The supplemental investigation and issuance
of the notice of processing and/or final decision must be completed
within sixty (60) calendar days of the date this decision becomes final.
A copy of the final decision and/or notice of processing must be submitted
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
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. 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 (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:
April 2, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Another complaint filed by appellant alleged ongoing sexual harassment
and other acts of discrimination. This complaint was reviewed separately
by the agency as Agency No. 11-95-503.
2 We note that appellant's arguments on appeal appear to relate
to her other complaint, Agency No. 11-95-503, which the agency stated
would be addressed separately and is not part of the final decision at
issue herein.
3In light of our affirmance of the dismissal of these allegations on the
grounds of failure to state a claim, we need not address the agency's
alternative grounds for dismissal.