Cathleen Parker, Complainant,v.William S. Cohen, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionNov 8, 2000
01a05722 (E.E.O.C. Nov. 8, 2000)

01a05722

11-08-2000

Cathleen Parker, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.


Cathleen Parker v. Department of Defense

01A05722

November 8, 2000

.

Cathleen Parker,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

Agency.

Appeal No. 01A05722

Agency No. DSS-00-013-MW-M

DECISION

Based on a review of the record, we find that the agency improperly

dismissed complainant's complaint.<1> Complainant alleged that she was

subjected to discrimination on the bases of sex (female) and reprisal

(prior protected activity) in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. when the

agency harassed her, denied her training and promotional opportunities,

and subjected her to a hostile environment.

In response to the formal complainant of discrimination, the agency

issued a final agency decision (FAD) dated August 1, 2000. The FAD

recognized the complaint as containing eleven (11) specific incidences

of discrimination. The agency dismissed each specific incident for

various reasons including failure to state a claim, untimely counselor

contact, raising a moot claim and raising an issue already decided by

the agency. The agency failed to consider the continual and on-going

nature of complainant's claim.

The record reveals that complainant alleged during the informal

complainant process that �imperative to the complaint is the fact that

there has been harassment, continual denial of training

and promotional opportunity, retaliation and disparate treatment, the

work environment has been hostile for me in the Omaha Field Office.�<2>

Complainant alleged that the agency subjected her to harassment in several

different ways which created a hostile work environment. Instead of

treating these events as specific incidences of the claim of harassment,

the agency treated them as distinct claims. Thus, we find that the agency

acted improperly by treating matters raised in complainant's complaint

in a piecemeal manner. See Meaney v. Department of the Treasury, EEOC

Request No. 05940169 (November 3, 1994) (an agency should not ignore the

"pattern aspect" of a complainant's claims and define the issues in a

piecemeal manner where an analogous theme unites the matter complained

of). Consequently, when complainant's claims are viewed in the context of

complainant's complaint of harassment, they state a claim and the agency's

dismissal of those claims for failure to state a claim was improper.

With respect to the agency's dismissal of specific incidences of

discrimination for untimely counselor contact, we remind the agency

that the Commission has held that time requirements for initiating EEO

counseling could be waived as to certain claims 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. United States

Postal Service, EEOC Request No. 05901150 (December 28, 1990).

In the instant case the FAD did not address the alleged interrelatedness

of complainant's averments. We remind the agency that 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, complainant 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 complainant.

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 complainant

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).

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. 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 (150)

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 acknowledgment 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 (K0900)

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 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)(Supp. V 1993). 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 (M0900)

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 19848,

Washington, D.C. 20036. 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

(R0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 8, 2000

Date

1On November 9, 1999, revised regulations

governing the EEOC's federal sector complaint process went into effect.

These regulations apply to all federal sector EEO complaints pending at

any stage in the administrative process. Consequently, the Commission

will apply the revised regulations found at 29 C.F.R. Part 1614 in

deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at www.eeoc.gov.

2 Email from complainant to EEO counselor dated April 24, 2000.