01a02063
05-22-2000
Barbara A. Orandello, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Barbara A. Orandello, )
Complainant, )
)
v. ) Appeal No. 01A02063
) Agency No. 1-99-2155
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency dismissing 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., and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq.<1> Complainant received
the final agency decision on December 13, 1999. The appeal was
postmarked January 5, 2000. Accordingly, the appeal is timely (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter cited
as 29 C.F.R. �1614.402(a)), and is accepted in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �1614.405).
ISSUES PRESENTED
1. The first issue on appeal is whether the agency properly dismissed
claims 1-5 of the complaint on the grounds that complainant failed to
contact an EEO Counselor in a timely manner.
2. The second issue on appeal is whether the agency properly dismissed
claims 6-7 of the complaint on the grounds of failure to state a claim.
BACKGROUND
Complainant initiated contact with an EEO Counselor on July 7, 1999.
In a formal EEO complaint dated August 23, 1999, complainant claimed
that she was subjected to a discriminatory hostile work environment on
the bases of her sex (female), age (DOB 11/2/49), and in reprisal for
her previous EEO activity when:
1. On January 31, 1997, she was counseled by her supervisor about an
�Italian male� remark.
2. On July 25, 1997, and August 15, 1997, the Regional Flight Surgeon
requested her assistance in dealing with the Air Traffic Controllers'
Union.
3. Management delayed approving her request for compensatory time
until December 5, 1997.
4. On October 19, 1998, management questioned her inability to attend
a meeting due to her husband's scheduled surgery.
5. In June 1999, complainant had difficulty obtaining information on
and the location of a Program Analyst position that was announced.
6. On June 17, 1999, the Deputy Regional Flight Surgeon spoke to
complainant in an accusatory and condescending manner regarding possible
discrepancies in a patient's record.
7. In July 1999, complainant's supervisor repeatedly requested
information from her about the incident involving the alleged
discrepancies in the patient's record.
The record contains a memorandum dated July 13, 1999, from complainant's
supervisor to complainant wherein it was requested that complainant
provide a written summary of events regarding the incident concerning the
alleged discrepancies in the patient's record. Complainant's supervisor
noted that the patient claimed that certain tests were not administered
at the time of his agency medical examination. The supervisor requested
that complainant's written summary include the content of the patient's
discussion with complainant regarding the examination and its alleged
deficiencies, and the actions complainant took after becoming aware of
the patient's allegations. After receiving complainant's response,
complainant's supervisor forwarded a memorandum dated July 21, 1999,
to complainant. In this memorandum, complainant was requested to
provide answers to a series of questions pertaining to the same incident.
Complainant's supervisor noted that the answers were necessary for the
investigation being conducted by the Deputy Regional Flight Surgeon.
The supervisor stated that the Deputy Regional Flight Surgeon is
particularly interested in the specific details of the conversation
between complainant and the patient.
In its final decision, the agency dismissed claims 1-5 of the complaint
on the grounds that complainant failed to initiate contact with an
EEO Counselor in a timely manner. The agency determined that each of
the incidents raised in these claims occurred more than 45 days before
complainant's initial EEO contact on July 7, 1999. According to the
agency, discussions with the Eastern Region Civil Rights Office confirmed
that EEO posters are strategically posted at each agency facility.
Claims 6-7 were dismissed on the grounds of failure to state a claim.
The agency determined that the relevant incidents do not present an
unresolved harm or loss affecting a term, condition, or privilege of
complainant's employment. The agency further stated that there is no
evidence that these two incidents were followed by a concrete action
against complainant. Finally, the agency concluded that complainant's
claim of a continuing violation lacks merit. According to the agency,
the timely incidents raised by complainant failed to state a claim,
and therefore there can be no nexus between those incidents and the
untimely claims.
On appeal, complainant contends that she was unaware of the 45-day
limitation period for contacting an EEO Counselor. Complainant maintains
that the agency's Eastern Region Civil Rights Office advised her that
although they forward EEO posters to the various facilities in its region,
it can not attest as to whether the posters are strategically posted.
Complainant claims that neither she nor her coworkers were aware of EEO
posters at the work facility. According to complainant, subsequent to
her inquiry with the Eastern Region Civil Rights Office, the agency
posted a memorandum dated December 27, 1999, that contains a listing
of EEO Counselors and the time frame for contacting an EEO Counselor.
Complainant argues that she suffered a direct and personal deprivation and
that her supervisors have engaged in a pattern of discriminatory conduct
against her. Complainant states that she never received a response to
her January 1999 memorandum requesting that her position description be
revised to conform to the duties that she was performing on a daily basis.
According to complainant, the incident on June 17, 1999, involving the
Deputy Regional Flight Surgeon was a culmination of all that she has
had to endure from her supervisors over the past three years.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
cited as 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Regarding the placement of posters at the agency worksite, we note
that it is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation of
informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request 05910474 (September
12, 1991). However, we have held that a generalized affirmation that an
agency posted EEO information, without specific evidence that the poster
contained notice of the time limits, is insufficient for constructive
knowledge of the time limits for EEO Counselor contact. Pride v. USPS,
EEOC Request No. 05930134 (August 19, 1993).
With regard to claims 1-5, complainant claimed that she was discriminated
against from January 31, 1997 - June 1999. Complainant initiated contact
with an EEO Counselor on July 7, 1999. We note with regard to claim 5
that the incident at issue occurred in June 1999. Therefore, complainant's
contact of an EEO Counselor on July 7, 1999, was timely. As for claims
1-4, complainant contacted an EEO Counselor more than 45 days after the
relevant incidents occurred. Complainant claims on appeal that she was
unaware of the 45-day limitation period for contacting an EEO Counselor.
According to complainant, neither she nor her coworkers were aware of
EEO posters at the work facility. Complainant argues that although
the agency's Eastern Region Civil Rights Office advised her that they
forward EEO posters to the various facilities in its region, it can not
attest as to whether the posters are strategically posted. The agency has
presented no evidence that EEO posters were on display during the period
of the alleged discrimination, nor has the agency otherwise refuted
complainant's contention that she lacked knowledge of the applicable
limitation period for contacting an EEO Counselor. Accordingly, the
agency's decision to dismiss claims 1-5 of the complaint on the grounds
of untimely contact is REVERSED. Claims 1-5 of the complaint are hereby
REMANDED for further processing pursuant to the ORDER below.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. �1614.107(a)(1)) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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. 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 29
C.F.R. �1614.103); �1614.106(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 22, 1994).
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Request No. 01933866 (November 22,
1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,
the trier of fact must consider all of the circumstances, including the
following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
In the present complaint, complainant claimed that she was subjected to
a discriminatory hostile work environment based on her sex, age, and
in reprisal for her previous EEO activity. Complainant claims that the
incident set forth in claim 6 was a culmination of all that she has had to
endure from her supervisors over the past three years. Complainant argues
that each of the incidents presented in her complaint is indicative
of a hostile work environment. Viewing claims 6-7 and the remainder
of the complaint in the light most favorable to complainant, we find
that complainant stated a cognizable claim under the EEOC Regulations.
See Cervantes v. United States Postal Service, EEOC Request No. 05930303
(November 12, 1993). Accordingly, the agency's decision to dismiss
claims 6-7 of the complaint on the grounds of failure to state a claim
is REVERSED. Claims 6-7 are hereby REMANDED to the agency for further
processing in accordance with the Order below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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:
May 22, 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,
and the agency on:
DATE 1 On 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.