01981747
11-10-1998
Carol A. Lazard, )
Appellant, )
)
v. ) Appeal No. 01981747
) Agency No. 1G-771-0054-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On December 20, 1997, appellant filed a timely appeal with this Commission
from a final agency decision ("FAD") dated November 14, 1997, pertaining
to her complaints 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.<1> The agency consolidated appellant's complaints pursuant to
29 C.F.R. �1614.606. In her complaints, appellant alleged that she was
subjected to discrimination on the basis of sex (female) when:
In June 1994, appellant's supervisor ("S1") sexually harassed appellant
and subjected her to a hostile work environment;
In April 1996, S1 harassed appellant about her off days;
In May 1996, S1 verbally harassed appellant about her personal life;
In August 1996, S1 verbally harassed appellant about her days off;
On November 23, 1996, S1 changed appellant's off days;
On January 27, 1997, S1 charged appellant Absent Without Leave ("AWOL"):
On February 17, 1997, S1 refused to give appellant weekends off;
On March 18, 1997, S1 paged appellant to sign PS Form 3971 and screamed
at her;
On March 21, 1997, S1 told appellant to go to secondaries and screamed
at her;
On March 24, 1997, S1 instructed appellant to report to automation;
On May 14, 1997, appellant's sick leave was changed to EAL and she was
harassed with verbal comments by S1;
On May 16, 1997, S1 gave appellant a pre-disciplinary discussion
On November 14, 1997, the agency issued a final decision
accepting allegations (6), (7), and (11) for investigation, and
dismissing allegations (1) through (5) 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 (8), (9), (10), and (12), pursuant to
29 C.F.R. �1614.107(a), for failure to state a claim. Specifically, the
agency determined that appellant's February 10, 1997 initial EEO Counselor
contact occurred more than forty-five (45) days from the dates on which
the incidents identified in allegations (1) through (5) took place,
and was, therefore, untimely. Additionally, the agency determined that
appellant was not aggrieved as a result of allegations (8), (9), (10),
and (12) because she failed to allege that she suffered harm to a term,
condition, or privilege of her employment as a result of the incidents.
Additionally, the agency found that remarks, unaccompanied by any concrete
action, did not render appellant aggrieved, and that under EEOC precedent,
a pre-disciplinary discussion did not state a cognizable claim.
On appeal, appellant contends that the harassment to which she was
subjected was ongoing in nature.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Additionally, 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 McGivern
v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990);
Starr v. U.S. Postal Service, EEOC Appeal No. 01890412 (April 6, 1989).
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, 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).
It is well-settled that where, as here, there is an issue of timeliness,
"[a]n agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness."
Williams v. Department of Defense, EEOC Request No. 05920506 (August
25, 1992). Moreover, where, as here, a complainant alleges recurring
incidents of harassment, "an agency is obligated to initiate an inquiry
into whether any allegations untimely raised fall within the ambit of
the continuing violation theory." Guy v. Department of Energy, EEOC
Request No. 05930703 (December 16, 1993) (citing Williams). As the
Commission further held in Williams, where an agency's final decision
fails to address the issue of continuing violation, the complaint
"must be remanded for consideration of this question and issuance
of a new final agency decision making a specific determination under
the continuing violation theory." Accordingly, in the instant case,
where appellant alleged that allegations (1) through (5) were part of
an ongoing pattern of harassment, the agency must determine on remand
whether these allegations comprise part of a continuing violation.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which 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).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive: and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
We note that standing alone, allegations (8), (9), (10), and (12)
fail to state a claim. See Backo v. U.S. Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. U.S. Postal Service, EEOC Request
No. 05940695 (February 9, 1995). However, in appellant's complaint,
she alleged a series of events which allegedly occurred from June
1994 through May 16, 1997. Specifically, appellant alleged that she
was subjected to conduct which created a hostile work environment.
When allegations (8), (9), (10), and (12) are viewed in the context
of appellant's hostile work environment complaint, they state a claim.
Consequently, the agency's dismissal of these allegations for failure to
state a claim was improper. See Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 3, 1994).
Accordingly, the agency's dismissal of allegations (1) through (5) is
hereby VACATED. The agency's dismissal of allegations (8), (9), (10),
and (12) was improper and is hereby REVERSED. All of these allegations
are REMANDED to the agency for further processing in accordance with
this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall undertake a supplemental investigation to determine if
allegations (1) through (5) constitute part of a continuing violation
in conjunction with the other allegations of appellant's complaint;
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue a notice of processing or new final
decision regarding allegations (1) through (5) clearly setting forth
its determination regarding the existence of a continuing violation;
The agency shall also acknowledge to appellant that it has received the
remanded allegations (8), (9), (10), and (12) 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 notice of processing and/or new FAD regarding
allegations (1) through (5), and a copy of the agency's letter of
acknowledgment regarding allegations (8), (9), (10), and (12) 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 (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 10, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations 1The agency was unable to supply
a copy of a certified mail return receipt or any other material
capable of establishing the date appellant received the agency's
final decision. Accordingly, since the agency failed to submit
evidence of the date of receipt, the Commission presumes that
appellant's appeal was filed within thirty (30) days of receipt
of the agency's final decision. See, 29 C.F.R. �1614.402.