01a02440
03-21-2000
Audrey Russell, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Washington Headquarters Services,) Agency.
Audrey Russell v. Department of Defense
01A02440
March 21, 2000
Audrey Russell, )
Complainant, )
)
v. ) Appeal No. 01A02440
William S. Cohen, ) Agency No. 95-PAO-001
Secretary, )
Department of Defense, )
(Washington Headquarters Services,) )
Agency. )
______________________________________)
DECISION
On June 20, 1995, complainant filed a formal complaint alleging that she
was subjected to discrimination on the basis of race (African-American)
when:
Complainant was subjected to a hostile work environment by her
supervisors, Persons A, B, C, and D; specifically, in March 1995,
complainant stated that Person A berated her for violating rules
that were not applied to others, and Person B made comments about
complainant's hair and age;
On April 3, 1995, complainant was forced to accept a transfer to the
position of Information Assistant, GS-6/7;
Complainant was denied a promotion in 1992, 1993, and 1994 by her
supervisors, Persons A, B, and C;
Complainant applied for the position of Management Analyst, GS-12,
in December 1994, but was not selected;
Complainant was limited to taking lunch periods of thirty to forty-five
minutes from September 1990 through December 1993, while White employees
took one-hour lunch periods;
On September 7, 1994, complainant was not offered the opportunity to
work overtime;
Complainant was denied performance awards in April 1992 and April 1993;
In June 1994, complainant was denied the opportunity to review or
provide comments on her performance evaluation; and
From 1990 through 1993, complainant was denied a key for access to
the office after a cipher lock was installed.
In a final agency decision dated March 18, 1996, the agency dismissed
issues (1) through (3) for failure to state a claim, and issues (4)
through (9) for untimely EEO Counselor contact. On April 19, 1996,
complainant appealed the agency's dismissal of her complaint. Russell
v. Department of Defense, EEOC Appeal No. 01963786. The Commission
issued a decision on January 22, 1997, reversing the agency's dismissal of
issues (1) through (3) and remanding these issues for further processing.
In addition, the Commission ordered the agency to determine whether issues
(4) through (9) constituted part of a continuing violation.
On April 2, 1997, complainant filed a new complaint alleging continuous
discrimination based on her race (African American), physical
disability (diabetes mellitus, peptic ulcer disease, hiatal hernia,
unstable hypertension, obesity, and adjustment disorder with anxiety),
and in reprisal for prior EEO activity when: (10) on January 9, 1997,
complainant's supervisor, Person E, issued her a letter denying her
request for a light duty accommodation and she was subjected to emotional
stress and an increased workload, and (11) on March 25, 1997, Supervisor
E implemented a change to complainant's lunch hour schedule where she
was to rotate her lunch every two months. The agency consolidated
complainant's April 2, 1997 complaint with her June 20, 1995 complaint.
By letter dated August 26, 1997, the agency notified complainant that
it accepted for processing issues (1), (2), (4) and (10). The agency
dismissed issues (3), (5), (6), (7), (8), (9), and (11) on the grounds
of untimely EEO Counselor contact. The agency found that none of the
seven dismissed allegations constituted a continuing violation because
there was no relationship to the timely issues accepted in the complaint.
The agency stated that the dismissed issues each had a definite conclusion
and were isolated incidents.
By letter postmarked September 12, 1997, complainant contested the
agency's dismissal of the seven issues for untimely counselor contact.
Specifically, complainant stated that the agency failed to conduct an
inquiry into when complainant became aware of the alleged discrimination.
In addition, complainant stated that the issue of racial hostility in
the Office of Public Affairs Directorate for Communications should also
be accepted as an issue for investigation, as stated in her April 2,
1997 complaint.
In response to complainant's September 1997 letter, the agency sent
complainant a letter dated December 8, 1997, informing complainant
that it reaffirmed the partial acceptance/dismissal of the issues in
her complaint. The agency informed complainant of her right to file
a petition for enforcement. On January 8, 1998, complainant contacted
the Commission challenging the dismissal of issue (3). Complainant's
correspondence was docketed as a Petition for Enforcement (EEOC Petition
No. 04980012). On March 3, 2000, the Commission administratively closed
the Petition for Enforcement upon determining that the matter was more
appropriately reviewed as an appeal. Consequently, the Commission
opened the present appeal. We note, however, that complainant did not
file an appeal of the dismissal of issues (4) through (9). Therefore,
we will not address the propriety of the agency's dismissal of issues
(4) through (9) herein.<1>
The agency dismissed issue (3) of complainant's complaint on the grounds
of untimely EEO Counselor contact.<2> Specifically, the agency stated
that the denial of promotions were first brought to the attention of
the EEO Counselor on May 12, 1995, more than 45 days after she became
aware of the alleged discriminatory events. In addition, the agency
found that each denial of a promotion was an isolated incident, and
therefore did not constitute a continuing violation.
Complainant argues that the same management officials who denied
complainant promotions in 1992, 1993, and 1994, also made the decision
not to consider her for the management analyst position in December 1994.
Complainant claims that these incidents constituted a continuing violation
since they were purportedly interrelated.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain claims 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 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).
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 of Louisiana State Univ.,
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, complainant 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 complainant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
We find that issue (3), denial of promotions in 1992, 1993, and 1994,
was properly dismissed on the grounds of untimely EEO Counselor contact.
We find that each denial of promotion was sufficiently distinct to cause
complainant to assert her rights. Since each non-promotion at issue
clearly occurred more than 45 days prior to complainant's EEO Counselor
contact on May 12, 1995, we find that issue (3) was properly dismissed
as untimely.
Accordingly, the agency's dismissal of issue (3) was proper and is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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. 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 (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:
March 21, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1We note that based on recent correspondence received by the agency, the
issues accepted for processing, issues (1), (2), (4), and (10), are being
held in abeyance pending a Commission decision on the present appeal.
2On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.