01976267
11-16-1998
Brenda E. Shawe, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Brenda E. Shawe v. Department of the Army
01976267
November 16, 1998
Brenda E. Shawe, )
Appellant, )
)
v. ) Appeal No. 01976267
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
___________________________________)
DECISION
Appellant filed an appeal from the agency's decision dated July 23,
1997 dismissing appellant's complaint of employment discrimination dated
February 7, 1997.
In the complaint appellant alleged that she was discriminated against
on the basis of age in 1996 through November when: "supervisor
makes constant remarks about my performance in front of co-workers &
embarrasses me by the verbal abuse." Responding to the agency's request
for clarification, appellant stated in a letter dated March 25, 1997 that
from February 1996 through June 1996 her supervisor verbally abused her
on a regular basis. Appellant claimed that her supervisor "would loudly
made statements about my work and me daily." Near the end of the two page
March 25, 1997 letter appellant noted that she received a discriminatory
rating and was discriminatorily not selected for a position.
In the July 23, 1997 decision the agency defined the complaint as
consisting of three allegations:
Allegation 1 - the verbal abuse from February through June 1996
Allegation 2 - performance rating
Allegation 3 - nonselection
The agency dismissed allegation 1 for untimely EEO Counselor contact.
The agency dismissed allegations 2 and 3 on the grounds that appellant
did not raise these maters with an EEO Counselor in the instant complaint.
The agency noted that allegation 3 was counseled in a subsequent informal
complaint. The Commission finds that appellant did not raise allegations
2 and 3 in the instant complaint. Therefore, the Commission finds that
the agency's decision dismissing allegations 2 and 3 was improper.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that allegations of
discrimination be brought to the attention of the EEO Counselor within
45 calendar days of the alleged discriminatory event. The Commission
has applied a "reasonable suspicion" standard to the triggering date for
determining the timeliness of the contact with an EEO Counselor. Cochran
v. United States Postal Serv., EEOC Request No. 05920399 (June 18, 1992).
Under this standard the time period for contacting an EEO Counselor is
triggered when the complainant should reasonably suspect discrimination,
but before all the facts that would support a charge of discrimination may
have become apparent. Id. "[W]aiting to obtain 'supporting facts' or
'proof' of discrimination prior to initiating a complaint can result in
untimely EEO Counselor contact." Quezada v. United States Postal Serv.,
EEOC Request No. 05930175 (citing Bracken v. United States Postal Serv.,
EEOC Request No. 05900065 (Mar. 29, 1990)).
The agency found, and the EEO Counselor's report shows, that appellant
initially contacted an EEO Counselor on July 31, 1996. Clearly some of
the alleged verbal abuse, occurring during the last week in June 1996,
occurred within 45 days of appellant's initial EEO Counselor contact.
The Commission finds that this complaint of harassment was continuing
and that appellant contacted an EEO Counselor within 45 days of an
alleged discriminatory act. The Commission finds that appellant was
not obligated to contact an EEO Counselor after the first alleged
incident of verbal abuse. The incidents of verbal abuse were not of
such a nature that appellant should have reasonably concluded she was
subjected to discriminatory harassment. To state a claim of a hostile
work environment appellant must make allegations that would indicate that
appellant may have been subjected to harassment that was sufficiently
severe or pervasive to alter the conditions of her employment. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
Thus, if appellant contacted an EEO Counselor after a few incidents of a
minor nature, then she risked submitting a claim that failed to allege
harassment sufficiently severe or pervasive to alter the conditions of
her employment.
The Commission finds that given the continuing nature of the alleged
harassment by appellant's supervisor we find that it was not unreasonable
for appellant not to raise the allegations with an EEO Counselor until
July 31, 1996. Under the circumstances of this case we find that because
the alleged harassment was of a continuing nature until 45 days or prior
to the time appellant contacted an EEO Counselor, appellant's contact
of an EEO Counselor was timely. Furthermore, we find that appellant
acted with due diligence in pursuing her complaint.
The agency's decision dismissing the complaint is REVERSED and we REMAND
the complaint, as defined in this decision as containing only allegation
1, to the agency for further processing in accordance with this decision
and applicable regulations.
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 acknowledgement 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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.
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:
November 16, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations