01A02388_r
03-04-2003
Claire M. Castellano, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Claire M. Castellano v. Department of Transportation
01A02388
March 4, 2003
.
Claire M. Castellano,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A02388
Agency No. DOT-2-98-2057
DECISION
Complainant filed an appeal with this Commission from a final agency
decision pertaining to her complaint of unlawful 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On May 8, 1997, complainant initiated contact with an EEO Counselor.
Pre-complaint documents reflect that complainant claimed that she was
the victim of harassment that adversely affected her personal health
and well being through verbal abuse, leave denials and other agency
actions. Informal efforts to resolve her concerns were unsuccessful.
On February 20, 1998, complainant filed a formal complaint, alleging that
she was the victim of unlawful employment discrimination on the bases of
national origin, sex, disability, and in reprisal for prior EEO activity.
Complainant claimed that she was placed on leave without pay (LWOP)
and denied an alternative work schedule, resulting in a constructive
discharge in May 1997. Complainant also raised the following eight
claims, as framed by the agency:
1. For the rating period April 1, 1996 to March 31, 1997,
complainant received an overall rating of
unsatisfactory.<1>
2. In November 1996, she was placed on a Performance
Improvement Plan;
3. From December 1996 through May 1997, she was denied use or
lose leave;
4. In February 1997, she was denied administrative
support;
5. Her supervisor displayed her personnel file to other employees;
6. She was subjected to harassment by her supervisor;
7. She was assigned duties outside of her position
description; and
8. She was denied training.
On December 13, 1999, the agency issued a final decision. The agency
accepted the claim regarding the constructive discharge after being placed
on LWOP for investigation. However, the agency dismissed claims 1 -
4 on the grounds of untimely EEO Counselor contact. Regarding claims
5 - 8, the agency found that further information was needed concerning
the dates of the alleged incidents. The agency advised complainant
to provide the dates of the incidents regarding claims 5 - 8 within
15 days. Although the final decision of December 13, 1999, dismissed
some of the claims and accepted one claim for investigation, the agency
nevertheless provided complainant with appeal rights to the Commission.
Consequently, complainant filed the instant appeal.
The record reflects, however, that subsequent to the filing of
complainant's appeal, the agency issued an amended final decision on July
27, 2000. Therein, the agency again accepted the constructive discharge
claim for investigation; again dismissed claims 1 - 4 for untimely EEO
Counselor contact; and for the first time, dismissed claims 5 - 8 for
failure to state a claim. The final agency decision explained that the
dismissed claims (claims 1 - 8) would not be investigated and that the
dismissal of those claims was not appealable at that time, but was subject
to review by an Administrative Judge (AJ) of the Commission if complainant
requested a hearing after the completion of the investigation of the
accepted claim. The agency also notified complainant that she would have
the right to file an appeal from the agency's dismissal determination
upon the issuance of the final agency decision on the accepted claim.
After the agency conducted an investigation of the constructive
discharge claim, complainant requested a hearing. The EEOC AJ assigned
to conduct the hearing determined that he did not have jurisdiction over
the constructive discharge claim. The AJ found that the constructive
discharge claim was appealable to the Merit Systems Protection Board
(MSPB) and remanded the case to the agency.
On July 3, 2001, the agency issued a final decision on the merits of the
constructive discharge claim, finding no discrimination. The agency
provided complainant with appeal rights to the MSPB . In its July 3,
2001 decision, the agency made reference in footnote 1 that it had
procedurally dismissed the other eight claims raised in the instant
complaint.
The record reflects that complainant filed an appeal from the
final agency decision of July 3, 2001 with the MSPB (MSPB Docket
No. DC-0752-01-0572-I-1) In an Initial Decision dated August 20, 2001,
the MSPB AJ determined that complainant failed to make a non-frivolous
allegation that the agency placed her on enforced leave or her transfer
was coerced and thereby it was involuntary. Accordingly, the MSPB AJ
concluded that the MSPB lacked jurisdiction over complainant's appeal
and dismissed it. The record does not indicate that complainant filed
an appeal on the MSPB decision.
Claims 1- 8
As an initial matter, the Commission finds that the essence of claims
(1) through (8) involve one broader claim of ongoing harassment.
The Commission has previously held that 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 matters complained
of. See Meaney v. Department of Treasury, EEOC Request No. 05940169
(Nov. 3, 1994).
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.
The agency determined that complainant initially raised her claims of
discrimination in a letter to the EEO office date-stamped May 8, 1997.
As noted above, complainant is claiming that the agency subjected her
to ongoing harassment that ultimately resulted in her constructive
discharge in May 1997. The alleged incidents identified in claims (1),
(2) and (4) occurred in December 1996, November 1996 and February 1997,
beyond the forty-five day time limitation. However, claim 3 allegedly
occurred through May 1997, within forty-five days of complainant's initial
EEO contact. Because claim (3), part of complainant's overall single
harassment claim, was timely, we find that complainant's EEO Counselor
contact was timely with regard to all the matters raised, namely claims
(1), (2) and (4). Therefore, the agency's decision to dismiss claims
(1) - (4) for untimely EEO Counselor contact is hereby REVERSED.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that 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,
.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).
Because we find that complainant's eight claims are part of an overall,
single claim of ongoing harassment, we find that claims (5) - (8) were
improperly dismissed for failure to state a claim. Moreover, the only
proper questions in determining whether a claim is within the purview
of the EEO process are (1) whether the complainant is an aggrieved
employee and (2) whether she was alleged employment discrimination
covered by the EEO statutes. An employee is "aggrieved" if she has
suffered direct and personal deprivation at the hands of the employer.
See Hobson v. Department of the Navy, EEOC Request No. 05891133 (March
2, 1990). Here, complainant's claims include the denial of training and
duties outside of her position description. We find that complainant's
claims are sufficient to render her an aggrieved employee. Because she
has claimed that the adverse actions were based on national origin, sex,
disability and reprisal, she has raised claims within the purview of the
EEOC regulations. Therefore, the agency's decision to dismiss claims
(5) through (8) is REVERSED.
Constructive Discharge Claim
The regulation set forth at 29 C.F.R. � 1614.302(c)(2)(ii) provides,
in relevant part, that if an MSPB AJ finds that the MSPB does not have
jurisdiction over a matter, the agency shall recommence processing of
the mixed case complaint as a non-mixed case EEO complaint. Here, as
noted above, the MSPB AJ determined that the MSPB lacked jurisdiction,
in a decision dated July 3, 2001. Therefore, the agency is required to
process petitioner's complaint as a non-mixed matter, and complainant
has the right to a hearing before an EEOC AJ, as she had previously
requested. See 29 C.F.R. � 1614.109 et seq. Accordingly, the agency's
decision, regarding the constructive discharge claim is VACATED.
Finally, the Commission finds that the harassment claim, comprised of
claims (1) - (8), is inextricably intertwined with complainant's claim
of constructive discharge. Specifically, it appears that the alleged
ongoing harassment culminated in the constructive discharge. Therefore,
we find that claims (1) through (8) shall be forwarded to an EEOC AJ
along with the discharge claim.
Accordingly, the agency's decision to dismiss complainant's complaint
is hereby REVERSED. The complaint is 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 action:
Within ten (10) calendar days of the date this decision becomes final,
the agency shall forward a copy of complainant's file and a copy of this
Decision and Order to the appropriate EEOC Office with a request that
the matter be assigned to an Administrative Judge for a hearing on an
expedited basis.
The agency shall send copies of the agency's request letter to the
complainant and the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(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 (M0701)
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
March 4, 2003
__________________
Date
1Although this claim addresses a rating
period ending in March 1997, the EEO Counselor's Report indicated that
on December 22, 1996, complainant was rated unsatisfactory at the end
of a �performance rating cycle;� and on appeal, complainant states that
she was �rated for a period of 7 months, rather than 12.�