01981065
11-06-1998
Charlotte R. Rodriguez, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Charlotte R. Rodriguez, )
Appellant, )
)
v. ) Appeal No. 01981065
) Agency No. ATASFO9707HO310
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint 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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. �621 et seq. The final agency decision was
dated October 21, 1997. The appeal was postmarked November 25, 1997.
Accordingly, the appeal is timely<1> (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed allegations
(1) through (3) due to untimely EEO Counselor contact and/or for failure
to state a claim and allegations regarding performance appraisals,
monetary awards, additional duties, and working conditions by failing
to address them.
BACKGROUND
The record indicates that on June 4, 1997, appellant contacted an EEO
Counselor with regard to her complaint. Unable to resolve the matter
informally, appellant filed a formal complaint dated September 9, 1997,
alleging discrimination based on sex (female) and age (50) when since
July 1993, she was subjected to continuing discrimination in that:
(1) In March 1997, she was informed that one of her employees would be
detailed out of her office effective May 25, 1997, which would leave
her short staffed;
(2) In or around July 1993, her office was realigned/transferred from
the Chief of Staff Office to the Deputy Chief of Staff for Engineering
and Housing Office; and
(3) On February 16, 1995, she received her position classification.
Appellant also alleged that since 1993, she received low performance
appraisals, less monetary awards, and additional duties. Appellant
indicated that she was subjected to harassment, i.e., with regard to
opening of her mail and questioning her work schedule and requests
for leave.
On October 21, 1997, the agency issued a final decision dismissing
allegations (1), (2), and (3) due to untimely EEO Counselor contact.
The agency stated that the alleged incidents occurred in and before March
1997, but appellant did not contact an EEO Counselor until June 4, 1997,
which was beyond the requisite time limit. The agency indicated that the
allegations did not constitute a continuing violation since the incidents
were not closely related in time, and they were separate and discrete
acts. With regard to allegation (1), the agency also indicated that it
failed to state a claim since it did not involve "an actionable wrong."
In its decision, the agency failed to address the allegations concerning
performance appraisals, monetary awards, duties, and working conditions.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
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. United States Postal
Service, EEOC Request No. 05901150 (December 28, 1990); Starr v. United
States 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). In order to
establish a continuing violation, the complainant must show that he did
not know, could not have reasonably known, and could not have reasonably
have expected to know of the discrimination. See Wallace v. Department
of Justice, EEOC Appeal No. 01922669 (December 15, 1992).
In allegation (1), appellant indicated that one of her employees was
detailed out of her office. The record indicates that although appellant
was informed of the incident in March 1997, it was not effective until
May 25, 1997. Thus, we find that appellant's EEO Counselor contact
regarding the matter on June 4, 1997, was within the 45-day time limit
set by the regulations.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
Although the agency determined that appellant was not aggrieved with
regard to the incident in allegation (1), appellant clearly indicated that
the detail of one of her employees resulted in her being short staffed.
Thus, we find that appellant was aggrieved with regard to a condition
of her employment as a result of the alleged incident. Therefore,
we find that allegation (1) stated a claim.
Allegations (2) and (3) involved her office being moved in July 1993,
and her position classification in February 1995. Appellant contacted
an EEO Counselor regarding the matters on June 4, 1997, which was beyond
the 45-day time limit set by the regulations. Upon review, we find
that allegations (2) and (3) did not constitute a continuing violation
since those incidents and the timely incident described in allegation
(1) were not interrelated and they were separate and discrete actions.
Furthermore, we note that the incidents in allegations (1), (2), and
(3) did not occur within close temporal proximity, i.e., they occurred
two years apart from each other. Thus, we find that appellant knew or
should have reasonably suspected the discrimination at the time of the
incidents described in allegations (2) and (3).
Finally, we note that the agency, in its decision, failed to address the
allegations regarding performance appraisals, monetary awards, duties,
and working conditions. Since we consider the agency's omission of
allegations as the dismissal of such, we find that the agency failed
to provide proper grounds for such dismissal under the regulations.
See 29 C.F.R. �1614.110. Therefore, we find that the agency's decision
dismissing those allegations by failing to address them was improper.
CONCLUSION
The agency's decision to dismiss allegations (2) and (3) due to untimely
EEO Counselor contact was proper and is AFFIRMED. The agency's decision
to dismiss allegation (1) due to untimely EEO Counselor contact and/or
for failure to state a claim and the allegations concerning performance
appraisals, monetary awards, duties, and working conditions by failing
to address them in its final decision was improper and is REVERSED.
Allegation (1) and the allegations concerning performance appraisals,
monetary awards, duties, and working conditions are REMANDED 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 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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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. If you
file a request to reconsider and also file a civil action, 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 6, 1998
DATE Ronnie Blumenthal, Director
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
fulfill its obligation to transmit its
final decision by a method enabling the
agency to show 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.