01994845
10-05-1999
Carrie Hunter, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Carrie Hunter v. Department of Health and Human Services
01994845
Carrie Hunter, )
Appellant, )
)
v. ) Appeal No. 01994845
) Agency No. 00-EEO990007
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
On May 28, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received on May 3, 1999, pertaining
to a complaint of unlawful employment discrimination pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq. and Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The Commission accepts appellant's appeal in
accordance with EEOC No. 960, as amended.
The record reflects that on January 29, 1999, appellant initiated contact
with an EEO Counselor. During the counseling period, appellant stated
that she was subjected to a series of discriminatory acts which are
listed below:
(1). Requests for training were denied on September 9, 1998, September
22, 1998 and October 16, 1998.
(2). Request for training was denied on November 17, 1998
(3). Request for training was denied on January 6, 1999
(4). Management failed to provide appellant reasonable accommodations for
her physical disability (asthma).
(5). Management excluded appellant from information, events and
activities/meetings and other conferences; assigned her projects to
other staff and failed to provide feedback on reports and tasks.
On March 29, 1999, appellant filed a formal complaint alleging that she
was the victim of unlawful employment discrimination based on her race,
physical disability and reprisal. Appellant's complaint was comprised
of the matters in which she underwent EEO counseling, discussed above.
On April 29, 1999, the agency issued a final decision, dismissing
allegations (1) and (2) for failure to initiate timely contact with an
EEO Counselor. The agency found that allegations (1) and (2) occurred
more than forty-five (45) days after appellant initiated contact with an
EEO Counselor on January 29, 1999. The agency also dismissed allegation
(4) because it is currently pending before the commission. The agency
found that allegation (4) was a duplicate claim already alleged within
appellant's prior complaint filed on August 13, 1998. However, the
agency did accept for investigation allegations (3) and (5).
The record in this case contains an EEO Counselors report. Therein,
appellant claims that she has been subjected to continuous discrimination
by management.
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.
Upon review of appellant's formal complaint, it is clear that appellant
viewed the denial of the requests for training as a continuing violation.
The commission has held that the time requirement for contacting an EEO
Counselor can be waived as to certain allegations within a complaint
when the complainant alleges a continuing violation, that is, a series
of related or discriminatory acts, or the maintenance of a discriminatory
system or policy before or during the filing period. See McGiven v. USPS,
EEOC Request No. 05901150 (December 28, 1990). If one or more of
the acts falls within the forty-five day period for contacting an EEO
Counselor, the complaint is timely with regard to all that constitute
a continuing violation. See, Valentino v. USPS, 674 F.2d 56, 65
(D.C. Cir. 1982); Verkennes v. Department of Defense, EEOC Request
No. 05900700 (September 21, 1990). A determination of whether a
series of discrete acts constitute 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). It is necessary to
demonstrate whether the acts are related by a common nexus or theme.
See Milton v. Weinberger, 645 F.2d 1070 (D.C. Cir. 1981).
In the case at bar, appellant's allegation regarding denial of requests
for training involves a number of potentially interrelated incidents of
discrimination allegedly orchestrated by agency officials. However, in
applying the continuing violation theory, one consideration is whether a
complainant had knowledge or suspicion of discrimination and the effect
of this knowledge. See, Sabree v. United Brotherhood of Carpenters &
Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990). The Commission
described Sabree as holding that a plaintiff who believed he had been
subjected to discrimination had an obligation to file promptly with the
EEOC or lose his claim, as distinguished from the situation where a
plaintiff is unable to appreciate that he is being discriminated against
until he experienced a series of acts and is thereby able to perceive the
overall discriminatory pattern. Hagan v. Department of Veterans Affairs,
EEOC Request No. 05920709 (Jan. 7,1993)
Here, we find that the alleged discriminatory actions from September 9,
1998 thru November 17, 1999 were acts that should have prompted appellant
to have a reasonable suspicion of discrimination at the time that they
occurred. We note, for example, that within appellant's complaint, she
states " In August 1998 I filed a formal complaint against Dr. Vivian
Pinn, Director of ORWH (appellant's supervisor)." Clearly, in the
very least, since the denials for training began to occur shortly
thereafter, appellant should have had a suspicion of discrimination.
Specifically, in the form of reprisal, which is a basis in appellant's
complaint. Furthermore, since on appeal, appellant offers no mitigating
circumstance for not timely contacting an EEO Counselor pertaining to
the aforementioned allegations, appellant has clearly failed to present
adequate justification pursuant to 29 C.R.F. �1614.105 (a) (2), for
extending the limitation period beyond forty-five days. Accordingly,
the agency's decision to dismiss allegations (1) and (2), for failure
to initiate contact with an EEO Counselor in a timely fashion was proper
and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(a), in relevant part, provides that
the agency shall dismiss a complaint or a portion of a complaint that
states the same claim that is pending before or has been decided by the
agency or Commission. However, in dismissing a complaint or allegation
therein, the agency has the burden of providing evidence and/or proof to
support its final decision. See, Gens v. Department of Defense, EEOC
Request No. 05910837 (January 31, 1992).
In the present case, the agency, in its final decision, argues that
allegation (4) is a duplicate claim. However, the agency has provided
the Commission with no evidence of this other than by making reference to
letters it claims establishes the duplicity of allegation (4). For the
above reason, the agency has failed to meet its burden under Gen Supra,.
Accordingly, the agency's final decision dismissing allegation (4)
is REVERSED and the allegation is REMANDED to the agency for further
processing, in accordance with the order below.
ORDERED (E1092)
The agency is ORDERED to process the remanded allegation 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 (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:
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
FOR OFO INTERNAL CIRCULATION ONLY
FOR PROCEDURAL CASES
TO: CARLTON M. HADDEN, ACTING DIRECTOR
OFFICE OF FEDERAL OPERATIONS
APPEAL NUMBER: 01994845
AGENCY NUMBER: 00-EEO990007
(APPROVED) (DATE)
REQUEST NUMBER:
HEARING NUMBER:
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY): Ralph A. Suris
October 5, 1999
(SUPERVISOR: Marjorie Borders
(DIVISION DIRECTOR):
1.) (APPELLANT(S) Carrie Hunter
2.) (AGENCY) H.H.S.
3.) (DECISION) Affirmed in part & Reversed in part
4.) (STATUTE(S) Title VII & The Rehabilitation Act
5.) (BASIS(ES) RB, HP & OR
6.) (ISSUE(S) T1 &01
7.) (TYPIST/DATE/DISK) RS1/ October 5, 1999
SPELL CHECK: YES
(PLEASE CHECK ALL APPLICABLE CODES)
PROCEDURAL CODES
LETTER CLOSURE CODES
X 3K - PROCEDURAL DECISION
? 3N - APPEAL DENIED/DISMISSED
? 3P - ADVERSE INFERENCE RAISED
? 4H - OFO AFFIRMED FAD
X 3M - OFO REVERSED AND REMANDED
? 4J - OFO MODIFIED FAD
? 4Q - COMPLIANCE REQUIRED
? 3B - FAD RESCINDED
? 3C - DUPLICATE DOCKET NUMBER
? 3D - WITHDRAWAL
? 3E - COMPLAINT SETTLED
? 3G - OTHER LETTER CLOSURE
[REVISED AS OF 4/21/98]