Wanda Freeman, Appellant,v.Aida Alvarez, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionApr 2, 1999
01970429_r (E.E.O.C. Apr. 2, 1999)

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.