01A03321_r
04-30-2002
Zoe D. McDonald, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Zoe D. McDonald v. Department of Transportation
01A03321
April 30, 2002
.
Zoe D. McDonald,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A03321
Agency No. 2992097
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 8, 2000, 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The Commission accepts the appeal in accordance
with 29 C.F.R.� 1614.405.
Complainant contacted the EEO office regarding claims of discriminatory
harassment in reprisal for prior protected activity. Informal efforts
to resolve complainant's concerns were unsuccessful. On May 20, 1999,
complainant filed a formal complaint. In its final decision, the agency
determined that complainant's complaint was comprised of the following
eight claims:
On January 8, 1999, complainant's first line supervisor issued her a
letter of reprimand for sending a cartoon (with no nudity) on the email;
From March of 1998, through March 16, 1999, her supervisor refused to
provide her with performance plans and appraisals;
From March of 1998, through March 16, 1999, her second line supervisor
encouraged her supervisor not to provide the performance plans and
appraisals to her;
From March of 1998, through March 16, 1999, her supervisor has refused
to provide you with equitable training and travel opportunities;
From March of 1998, through March 16, 1999, her supervisor made verbal
comments and written messages to intimidate, humiliate and professionally,
personally damage her in the workplace;
From March of 1998, through March 16, 1999, she were told by her
supervisor that she could not participate on the AIT newsletter group;
From March of 1998, through March 16, 1999, her supervisor subjected
her to constant emotional trauma as it related to her position with the
FAA; and
From March of 1998, through March 16, 1999, coworkers were told not to
get involved with her.
Throughout her complaint, complainant categorized her claim as harassment
by her supervisors in reprisal for prior EEO activity and enumerates
a series of events occurring as early as March, 1998, and continuing
through March 5, 1999.
In its final decision dated March 8, 2000, the agency dismissed
claims 1 through 8 on the grounds of untimely EEO Counselor contact.
Specifically, the agency determined that complainant's initial EEO
Counselor contact occurred on March 16, 1999, and was untimely regarding
these claims. The agency dismissed claims 6, 7, and 8 on the alternative
grounds of failure to state a claim.
Claims 1 through 8
As a threshold matter, the Commission finds that the agency misdefined
complainant's complaint. Complainant's eight claims actually comprise
one single claim of ongoing harassment. In her complaint, complainant
alleged a series of events which occurred from March 1998 through March
5, 1999. Specifically, complainant claimed that she was subjected to
continuous harassment including lack of training; denial of performance
and appraisal plans; projects with no scope and a letter of reprimand
for her previous participation in the EEO process. Furthermore, the
record reveals that the same supervisor was primarily involved in each
of the discriminatory events that complainant enumerated. Therefore, we
find that the enumeration of alleged incidents in claims 1 through 8 are
components of a single, broad claim of ongoing discriminatory harassment.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
However, EEOC Regulations provide that the agency or the Commission shall
extend the time limits when the individual shows that he was not notified
of the time limits and was not otherwise aware of them, that he did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his 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 claims within a complaint
when 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 Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States
Postal Service, EEOC Request No. 05901150 (December 28, 1990).
Upon review, the Commission finds that the agency improperly dismissed
claims 1 through 8 for untimely EEO Counselor contact. The Commission
has held that an agency should not ignore the pattern aspect of a
complainant's claims and define the issues in a piecemeal manner
where analogous theme unites the matters contained therein. Meaney
v. Department of the Treasury, EEOC Request No. 05940169 (November 3,
1994). The Commission notes that all the claims in the instant complaint
address alleged discriminatory harassment by complainant's supervisor.
Thus, we find that the incidents in complainant's complaint are part
of a continuing violation. Moreover, we note that the agency erred
in dismissing claims 1 through 8 on the grounds that complainant had
a reasonable suspicion of discrimination when the incidents occurred,
because there is a nexus between the span of events addressed in the
instant complaint. See Anisman v. Department of the Treasury, EEOC
Request No. 05A00283 (April 13, 2001).
Furthermore, we note that the agency decision relies on the date of
March 16, 1999, as the date of initial EEO Counselor contact. However,
the record indicates that complainant contacted the EEO office on January
13, 1999.<1> We note that the record discloses several claims occurring
well within 45 days of complainant's EEO Counselor contact or subsequent
to the January 13, 1999 contact, including the letter of reprimand on
January 8, 1999 (claim 1); denied training on March 5, 1999 (claim 4),
and denied participation in production of the agency's newsletter on
March 1, 1999 (claim 6). Because complainant's overall claim alleges
harassment that includes matters that occurred within forty-five days
of complainant's January 13, 1999 initiation of EEO Counselor contact,
we find that the EEO Counselor contact was timely with regard to all
the matters raised within the complaint.
Claims 6, 7 and 8
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Because we find that complainant's eight claims are part of an overall,
single claim of ongoing harassment, we find that the agency improperly
dismissed claims 6, 7 and 8 for failure to state a claim.
Accordingly, the final agency decision dismissing complainant's complaint
is REVERSED. The complaint, as clarified herein, is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (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
April 30, 2002
__________________
Date
1 The record contains an e-mail dated January 13, 1999, in which
complainant contacted the Civil Rights Office for a referral to an
agency EEO Counselor.