01990216
10-07-1999
Clydene D. Towne, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Clydene D. Towne, )
Appellant, )
)
v. )
) Appeal No. 01990216
Louis Caldera, ) Agency No.AOEWFO9703HO180
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On October 9, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated September 21, 1998, dismissing
her complaint for failure to state a claim and untimely counselor contact.
The Commission accepts the appellant's appeal in accordance with EEOC
Order No. 960, as amended.
On March 13, 1997 appellant contacted the EEO office regarding allegations
of harassment based on color (white) and reprisal. Informal efforts to
address appellant's concerns were unsuccessful. Accordingly, on May
22, 1997 appellant filed a formal complaint. The agency defined the
allegations as follows:
Appellant was allegedly harassed by her former supervisors, Supervisor A
and Supervisor B, while employed with Community Homefinding, Relocation,
Referral Services (CHRRS) when they promised appellant a position
upgrade, between May 1 and December 1994;
Supervisors A and B made nasty and derogatory remarks, used profanity,
and abusive language about former and current employees from May 1994
to March 1997;
While appellant was employed with CHRRS, from May 1, 1994 to August 2,
1996, her workload was excessive and the work was distributed inequitably
among certain employees;
Supervisor A harassed and threatened appellant with losing her job if
she stopped at a fast food restaurant to allow customers to eat or take
bathroom breaks;
From March 1995 to May 1996, Supervisor A gave disparate treatment
to employees in the matter of lunch breaks, smoke breaks, time off to
include time off awards, customers comment cards, better job duties, and
when Supervisor A took two employees shopping for Christmas decorations
on December 12, 1995;
On December 29, 1995 appellant was allegedly harassed when Supervisor A
rated appellant's annual mid-point evaluation. Appellant was allegedly
retaliated against when Supervisor A rated appellant's two appraisals
in July 1995 and July 1996 with satisfactory ratings;
In August 1995 Supervisor B accused appellant of not liking and being
jealous of another employee because appellant was not selected for the
GS-7 position;
From May 1, 1994 to August 2, 1996, Supervisor A required appellant to
work 1.5 hours of overtime without pay;
Supervisor A allegedly participated in illegal gambling activity when
she organized a football pool in the office;
Appellant was forced by Supervisor A to change her desk 19 times in a
two year period, with the last reported incident on April 12, 1996;
Supervisor A made appellant stay back and answer phones on or about
December 8, 1994 while other co-workers were dismissed for a VIP visit.
Supervisor A allegedly showed favoritism toward Black employees to
include, giving Blacks awards, extending lunch hours, new office
furniture and special favors;
On or about April 12, 1996 Supervisor A made comments that �Clydene
thinks she is so pretty she has to look at herself all day� and �Get
a look at this guy�;
On or about October 12, 1995 Supervisor A openly retaliated against
appellant for filing EEO complaints;
On or about May 3, 1996 Supervisor B made a threatening comment that
appellant should �never, never, never go over her head and talk to
[Supervisor A]�;
In April 1996 Supervisors A and B discriminated against appellant when
she was not selected for the GS-7 position in the CHRRS office;
Supervisor B's attorney threatened appellant. Appellant was further
harassed by Supervisors A and B when she filed a Congressional Inquiry;
Supervisors A and B gave appellant an excellent reference for the
position as Unaccompanied Personnel Housing Office.
The agency dismissed all the allegations for failure to state a claim
and untimely counselor contact, with the exception of allegations (9)
and (13) which were not cited for untimeliness.
With respect to the untimely allegations, the FAD indicated that the
alleged events occurred between 140 and 792 days after appellant's March
13, 1997 counselor contact.
On appeal, appellant contends that the allegations were part of a pattern
of harassment. She argues that the agency improperly treated her issues
in a piecemeal manner.
In response, the agency indicates that the continuing violation
theory cannot apply in appellant's case because none of the seventeen
allegations occurred within forty-five days of her March 13, 1997
counselor contact. Further, the agency argues that appellant reasonably
suspected discrimination more than forty-five days before her counselor
contact, citing the Congressional Inquiries and instances where she had
brought the issues to management's attention. It is also noted that
appellant does not contend she was unaware of EEO procedure and that
she has previously filed EEO complaints.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
Further, 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. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990).
In the instant case, appellant has alleged on appeal a �pattern of
harassment�. Accordingly, the agency initiated an inquiry into whether
the untimely allegations present a continuing violation. See Guy,
Jr. v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994).
We find that the agency correctly determined that appellant did not
timely raise with the EEO counselor any instance of discrimination.
The Counselor's Report indicates that �[a]ll issues [are] untimely.� Even
allegations (9) and (13), which were dismissed on other grounds, occurred
during appellant's employment with CHRRS (May 1, 1994 and August 2, 1996)
and are not timely. Appellant's March 1997 contact was approximately
seven months after she stopped working at CHRRS, and in some instances
the contact was years after the alleged incident. Therefore, there is no
timely raised allegation with which to present a continuing violation.
In addition, we find that appellant has not presented sufficient reason
for waiving the timeliness requirements on other grounds.
The agency properly dismissed allegations (1) - (8), (10), (11), (12),
and (14) - (17) pursuant to 29 C.F.R. �1614.107(b). Because of our
disposition we do not address whether these allegations were properly
dismissed on other grounds.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
Here, the FAD dismissed allegations (9) (illegal gambling activity) and
(13) (retaliation) pursuant to 29 C.F.R. �1614.107(a). We find that
appellant has failed to allege how the football pool has caused her a
present harm or loss with respect to a term, condition, or privilege of
employment. Similarly, in allegation (13) appellant has not sufficiently
alleged how she was rendered �aggrieved�. Therefore, allegations (9)
and (13) were properly dismissed for failure to state a claim.
Accordingly, the agency's decision dismissing appellant's complaint
is AFFIRMED.
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 (S0993)
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:
October 7, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations