0120091968
09-03-2009
Carol L. Mulhern,1 Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Carol L. Mulhern,1
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091968
Agency No. 200H-0542-2008102437
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's March 24, 2009 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Medical Support Assistant, GS-6, at the agency's Primary Care Nursing Support Services, VA Medical Center in Coatesville, Pennsylvania.
On April 3, 2008, complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On April 28, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that she was subjected to harassment and a hostile work environment2 on the bases of age (over 40) and in reprisal for prior EEO activity when:
1. on June 7, 2007, her supervisor (S1) embarrassed her during a staff meeting when he accused her of daydreaming and told her she needed to clean the ear wax out of her ears;
2. on June 7, 2007, after the staff meeting, S1 threatened her with a written counseling for disrespectful conduct;
3. on or about April 1, 2008, she learned S1 showed favoritism to a co-worker (CW) when he gave CW an "outstanding" performance rating but did not give complainant such a rating; and
4. on April 1, 2008, she learned she was not given a cash award amount equivalent to that of CW.
On May 28, 2008, the agency issued a partial dismissal. The agency accepted for investigation claims 3 - 4. However, the agency dismissed claims 1 - 2 pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds that claims 1 -2 raised a matter that had not been brought to the attention of an EEO Counselor or was not like or related to a matter that had been brought to the attention of an EEO Counselor.
The agency dismissed claims 1 - 2 on the alternative grounds of failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The agency found that the matters identified in claims 1 - 2 were isolated incidents that were insufficiently severe or pervasive to rise to the level of harassment.
By letter dated June 9, 2008 to the agency, complainant requested that the instant formal complaint be amended to include the following claim that she was subjected to harassment and a hostile work environment on the bases of age and in reprisal for prior EEO activity when:
5. on November 2, 2007, in her annual performance appraisal, S1 made the statement "[Complainant] works well with others but needs to develop a more tactful stand in conflict situations." 3
On June 12, 2008, the agency issued a second partial dismissal. Therein, the agency granted complainant's request to have the instant complaint amended by including claim 5. Specifically, the agency determined that claim 5 is like or related to matters discussed during EEO counseling as it involved complainant's performance appraisal. The agency again accepted claim 3 - 4 for investigation. The agency dismissed claim 5 for failure to state a claim finding that complainant was not aggrieved and on the alternative grounds of untimely EEO Counselor contact.
At the conclusion of the investigation concerning claims 3 - 4, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision on March 24, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its March 24, 2009 final decision, the agency found no discrimination concerning clams 3 - 4. Specifically, the agency found that complainant did not establish a prima facie case of age and reprisal discrimination. The agency further found that management nevertheless articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
On appeal, complainant argues that S1's reason for giving CW "'outstanding' is based on personal favoritism, not facts, and defamatory remarks towards me. Why even bring my coverage into her performance appraisal?" In support of her assertions, complainant submits copies from her colleagues and supervisors' complimentary remarks regarding her timekeeping performance.
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.
In its May 28, 2008 and June 12, 2008 partial dismissals, the agency dismissed claims 1 - 2 and 5 on the grounds of untimely EEO Counselor contact and on the alternative grounds of failure to state a claim. Upon review, however, we find that the agency improperly dismissed claims 1 - 2 and 5 on the grounds of untimely EEO Counselor contact. The record reflects that complainant initiated EEO Counselor contact on April 3, 2008. The Commission finds that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp v. Morgan, 536 U.S. 101, 117 (2002)).
The record reflects that claims 1 - 2 and 5 comprise incidents that are clearly related to each other and to claims 3 - 4 by an analogous theme, and at least one these incidents occurred within the 45-day time period preceding to complainant's April 3, 2008 EEO Counselor contact. Specifically, complainant claimed that she was subjected to harassment/hostile work environment on June 7, 2008, S1 embarrassed her during a staff meeting when he accused her of daydreaming and told her she needed to clean the ear wax out of her ears, after the June 7, 2008 and threatened her after the meeting with a written counseling of disrespectful conduct; and on November 2, 2007, in her annual performance appraisal, S1 made the statement "[Complainant] works well with others but needs to develop a more tactful stand in conflict situations." Based on the foregoing, we find that the agency improperly dismissed claims 1 - 2 and 5 on the grounds of untimely EEO Counselor contact. Moreover, we find that these factual allegations, when considered together, are sufficient to state a cognizable claim under the EEOC regulations. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
We acknowledge that the agency did investigate claims 3 - 4 and issued a decision on the merits. However, the Commission determines that claims 1 - 2 and 5, and the hostile work environment claim were raised in the same formal complaint and are factually tied to each other as they involved incidents which occurred during the same time frame and involved the same management officials. Therefore, these claims should not be processed separately. EEOC's Management Directive (MD)-110 cautions against fragmenting EEO complaints. See MD-110, Ch. 5, III. Therefore, we are vacating the agency's final decision on the merits of claims 3 - 4, and are ordering the agency to issue a new decision on the merits of the entire complaint once it supplements its earlier investigation with information about the hostile work environment claim.
Accordingly, we VACATE the agency's final decision finding no discrimination concerning claims 3 - 4. Moreover, we REVERSE the partial dismissal of claims 1 - 2 and 5 on the grounds of untimely EEO Counselor contact and the alternative grounds of failure to state a claim, defined herein as a harassment claim, and we REMAND this matter to the agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to process the remanded hostile work environment claims (claims 1 - 2 and 5) in accordance with 29 C.F.R. � 1614.108, for a supplemental investigation to the one already conducted on the other claims (claims 3 - 4) in this complaint. 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 (15) 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 acknowledgement 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 (K1208)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960, Washington, DC 20013. 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 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 (R0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 3, 2009
__________________
Date
1 The record reflects that complainant also goes by the name "Carol Talley."
2 The record reflects that in its final decision, the agency concluded even though complainant did not raise a hostile work environment claim during her informal EEO counseling, it was her intention to raise it in the instant formal complaint.
3 For ease of reference, the Commission has re-numbered the above referenced matters as claims 1 - 5.
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0120091968
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091968