01985415_r
09-17-1999
Betty J. Humphries, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Betty J. Humphries, )
Appellant, )
)
v. ) Appeal No. 01985415
) Agency No. 98-0395-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
______________________________)
DECISION
On June 30, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated May 26, 1998, pertaining to 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.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. In her complaint, appellant
alleged that based on her race (Black), sex (female), age (45), physical
disability (unspecified), and in reprisal for prior EEO activity, she
was subjected to the following pattern of harassment:
Subsequent to an August 1995 fall in the parking lot, appellant's
supervisor (S1) obstructed the processing of appellant's Office of
Workers' Compensation Programs (OWCP) claim;
In June 1996, S1 refused to reasonably accommodate appellant when she
returned to the workplace;
Subsequent to an August 1996 fall in the office, S1 obstructed the
processing of appellant's OWCP claim by delaying the completion of the
forms and by calling appellant at home for information;
On or about June 30, 1997, S1 issued appellant a proposed termination
letter (which was rescinded in July 1997) because she had amassed 240
hours of Absence Without Leave (AWOL);
In August 1997, when appellant attempted to return to work to avoid
termination, S1 ordered her to leave the building;
In August 1997, S1 continued to handle appellant's leave, medical
documentation, disability retirement, and related employment issues,
even though he had been reassigned to another work location;
In September 1997, appellant was forced to file for disability
retirement, which became effective January 23, 1998;
In September 1997, S1 obstructed the processing of appellant's disability
retirement by delaying the filing of the forms with the Office of
Personnel Management for nearly a month;
In December 1997, S1 requested additional documentation in support of
appellant's disability retirement claim;
In January 1998, appellant received a series of pay slips indicating
that she was again charged AWOL in lieu of LWOP, even though S1 knew
of appellant's pending disability retirement claim; and
In February 1998, appellant learned that her personal belongings in
the office had been discarded.
The agency dismissed allegations (1) through (8) pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b), for failure to initiate contact with
an EEO Counselor in a timely manner, and allegations (9) through (11)
pursuant to 29 C.F.R. �1614.107(a), for failure to state a claim.<1>
Specifically, the agency determined that because appellant's January 6,
1998 initial EEO Counselor contact occurred more than forty-five (45)
days from the dates on which the incidents identified in allegations (1)
through (8) took place, it was untimely. The agency further concluded
that appellant failed to establish a continuing violation because
the timely and untimely incidents shared no common nexus or theme, and
appellant had, or should have had a reasonable suspicion of discrimination
at the time the incidents occurred. With regard to allegations (9)
through (11), the agency determined that appellant failed to show that
she suffered harm to the terms, conditions or privileges of her employment
as a result of these incidents, and was, therefore, not aggrieved.
On appeal, appellant contends that she did not appreciate that the
actions taken against her were discriminatory until January 1998, when
�the pieces of the puzzle suggest[ed] to [appellant] that she was the
victim of discrimination.� Additionally, appellant contends that her
judgement was clouded by the various medications she took to control her
pain, and because of the stress and anxiety she suffered as a result of
S1's actions.
The Commission notes that the record is replete with references to various
accommodations that were both requested by appellant and offered by the
agency. We further note that the record discloses that appellant filed
a grievance concerning S1's denial of advance sick leave. In a November
22, 1995 letter concerning step one of that grievance, appellant's union
representative noted her suspicion that S1 �had a problem dealing with
woman (sic).�
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.
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.
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 Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999); McGivern v. U.S. 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, 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).
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).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge. Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
In the present case, we concur with the agency's determination that
appellant failed to establish a continuing violation. Although we
acknowledge that S1 was involved in all of the alleged incidents of
harassment, we find that these incidents were discrete acts which
had the degree of permanence which should have triggered appellant's
awareness and duty to assert her rights. Appellant was aware of S1's
failure to provide her reasonable accommodation, as she referenced the
issue in her grievance, and S1 identified the issue within the context
of appellant's OWCP claims. Consequently, we find that appellant should
have asserted her EEO rights when confronted by S1's alleged failure to
reasonably accommodate her disability. Finally, we note that although
the record contains no direct evidence that appellant, herself, suspected
discrimination on the basis of sex, appellant's union representative made
her aware of such suspicions when she referenced them in the letter in
support of appellant's step one grievance. Accordingly, we find that
appellant suspected, or reasonably should have suspected discrimination
at that time. Appellant may not now rely on the continuing violation
theory to absolve her of her responsibility to assert her EEO rights.
Further, we find that appellant's justification for her untimeliness;
i.e., that the pain medication, stress, and anxiety affected her
faculties, is unpersuasive. We have consistently held, in cases involving
physical or mental health difficulties, that an extension is warranted
only where an individual is so incapacitated by her condition that
she is unable to meet the regulatory time limits. See Davis v. United
States Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear
v. United States Postal Service, EEOC Request No. 05920700 (October 29,
1992); Weinberger v. Department of the Army, EEOC Request No. 05920040
(February 21, 1992); Hickman v. Department of the Navy, EEOC Request
No. 05910707 (September 30, 1991); Johnson v. Department of Health and
Human Services, EEOC Request No. 05900873 (October 5, 1990); and Zelmer
v. United States Postal Service, EEOC Request No. 05890164 (March 8,
1989). In the instant case, appellant provided no evidence showing that
she was so incapacitated by her disability and stress that she was unable
to meet the time limits for initiating EEO Counselor contact. In fact,
the record clearly establishes that appellant was sufficiently coherent
that she was able to pursue three OWCP claims and disability retirement.
Based on the foregoing, we find that appellant's justification is
insufficient to support a waiver of the applicable time limits.
EEOC Regulation 29 C.F.R. �1614.107(a) 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. 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 21, 1994).
We find that the agency erred in dismissing allegations (9) through
(11) for failure to state a claim, as in each of these allegations
appellant properly alleged harm to the terms, conditions or privileges
of her employment. The harms appellant identified; i.e., that she was
forced to provide additional information to support her OWCP claim,
that her leave was improperly documented as AWOL rather than LWOP, and
that personal belongings were taken from her work area, relate directly
to appellant's employment with the agency. Consequently, we find that
the agency's dismissal of allegations (9) through (11) was improper.
Accordingly, the agency's decision to dismiss allegations (1) through (8)
is AFFIRMED for the reasons set forth herein. The agency's decision to
dismiss allegations (9) through (11) is hereby REVERSED. Allegations
(9) through (11) are REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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. 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. 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:
Sept. 17, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1The Commission notes that the in the body of its final decision
the agency inadvertently indicated that allegations (1) through (8)
were being dismissed for failure to state a claim. However, as is
clear from the context of the decision and the concluding paragraph
before the appeal rights, the agency intended to dismiss only
allegations (9) through (11) pursuant to 29 C.F.R. �1614.107(a).