Audrey Russell, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Washington Headquarters Services,) Agency.

Equal Employment Opportunity CommissionMar 21, 2000
01a02440 (E.E.O.C. Mar. 21, 2000)

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.