01990962_r
09-13-1999
Colister Slater, Appellant, v. Davis J. Barram, Administrator, General Services Administration, Agency.
Colister Slater, )
Appellant, )
)
v. ) Appeal No. 01990962
) Agency No. 98R9PBSCS26
Davis J. Barram, )
Administrator, )
General Services )
Administration, )
Agency. )
______________________________)
DECISION
On November 12, 1998, appellant filed a timely appeal with this
Commission from a final agency decision (FAD) dated October 20, 1998,
pertaining to his 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. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of race (African-American) and age (date of birth January 12, 1950) when:
On or about October 27, 1997, appellant's initial hiring date:
(a) Appellant was denied priority hiring status; and
Appellant was denied saved pay;
In late 1997 or early 1998, appellant was rated ineligible for a
Supervisory Security Specialist, GS-080-13 position under Vacancy
Announcement No. 9890464;
In February 1998, appellant's second level supervisor accused appellant
of being a racist;
In March 1998, appellant's supervisor accused appellant of sending
racist facsimile transmissions;
(a) In March 1998, appellant's second level supervisor denied appellant
the use of an agency vehicle to go to the Vegas to Baker Run, and
required appellant to use his personal vehicle while granting the use
of an agency vehicle to a co-worker not of appellant's race or age;
(b) In March 1998, appellant's second level supervisor admonished
appellant for not participating in the Vegas to Baker Run;
On or about May 4, 1998, appellant's second level supervisor directed
or otherwise encouraged a co-worker to write a report critical of
appellant's actions during a service of process;
Appellant was not selected for Lead Police Officer, GS-083-9/10 under
Vacancy Announcement No. 9891704, dated June 1, 1998;
Appellant was not selected for a Supervisory Police Officer, GS-083-9/10
under Vacancy Announcement No. 981694, dated June 15, 1998; and
Appellant was rated ineligible for a Criminal Investigator, GS-1811-12
position under Vacancy Announcement No. 9891734, dated June 25, 1998.
The agency accepted allegation (9), but dismissed allegations (1)(a),
(1)(b), (2), (3), (4), (5)(a), and (5)(b) pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for untimely counselor contact. Specifically,
the agency found that appellant did not contact an EEO Counselor until
June 5, 1998. Further, the agency found that appellant's allegations were
not part of a continuing violation because the allegations were isolated
incidents involving different responsible officials that were not related
by a common theme. The agency also dismissed allegation (6) pursuant
to EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
Specifically, the agency found that appellant failed to show any injury
or harm from the allegation. Finally, the agency dismissed allegations
(7) and (8) pursuant to EEOC Regulation 29 C.F.R. �1614.107(e), for
alleging that a proposal to take a personnel action was discrimination.
Specifically, the agency found that no decision had been made regarding
the vacancies described in allegations (7) and (8).
On appeal, appellant contends that the basis of reprisal should be
added to his complaint. Appellant argues that subsequent to filing his
complaint, the agency selected a younger man for the position referenced
in allegation (7). Appellant alleges that his EEO Counselor improperly
processed his complaint, and that he has been non-selected for several
positions not listed in his formal complaint. Appellant attached many
documents to his appeal, including a memorandum from appellant to the
EEO Manager, dated May 25, 1998, which outlines appellant's allegations,
and states �I am filing this EEO complaint with you.�
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 (Apr. 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find [it]
hostile or abusive: and the complainant subjectively perceives it as
such.� Harris, supra at 21-22. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13,
1997).
Appellant alleged that he was subjected to a pattern of harassment
which created a hostile work environment. Allegations (3), (4), (5)(a),
(5)(b), and (6) all pertain to hostile work environment harassment from
appellant's second level supervisor, occurring over a span of several
months. Instead of treating these events as incidents of the claim
of harassment, however, the agency looked at them individually. Thus,
we find that the agency acted improperly by treating matters raised in
appellant's complaint in a piecemeal manner. See Meaney v. Department
of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency
should not ignore the "pattern aspect" of a complainant's allegations
and define the issues in a piecemeal manner where an analogous theme
unites the matter complained of). When considered together in a light
most favorable to appellant, the Commission finds that allegations
(3), (4), (5)(a), (5)(b), and (6) state a claim of harassment caused
by appellant's second level supervisor, and, therefore, the agency's
dismissal of allegation (6) was improper.
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. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period 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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
A complainant commences the EEO process by contacting an EEO Counselor
and �exhibiting an intent to begin the complaint process.� See Gates
v. Department of Air Force, EEOC Request No. 05910798 (Nov. 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194 (May
24, 1990)). For purposes of timeliness, contact with an agency official
who is �logically connected with the EEO process� is deemed a Counselor
contact. Jones v. Department of the Army, EEOC Request No. 05900435
(Sept. 7, 1990); see Kemer v. General Services Administration, EEOC
Request No. 05910779 (Dec. 30, 1991).
The EEO Manager is an official logically connected to the EEO process.
Nonetheless, the Commission finds that even if appellant's May 25, 1998
memo to the EEO Manager is considered his initial counselor contact,
allegations (1)(a), (1)(b), (2), (3), (4), (5)(a), and (5)(b) were not
raised within 45-days of their occurrence.
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 Reid v. Department of Commerce, EEOC
Request No. 05970705 (Apr. 22, 1999); McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (Dec. 28, 1990).
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 Maldonado v. Department of the Interior, EEOC Request
No. 05900937 (Oct. 31, 1990); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (Sept. 21, 1990); Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989). 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).
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 (Oct. 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
See Jackson v. Department of the Air Force, EEOC Request No. 05950780
(June 27, 1997); see also Sabree v. United Brotherhood of Carpenters
and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990) (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 has lived through a series of acts and
is thereby able to perceive an overall discriminatory pattern).
The common nexus between allegations (3), (4), (5)(a), (5)(b), and (6) has
already been discussed above. Further, allegation (6) was timely raised.
Accordingly, allegations (3), (4), (5)(a), and (5)(b) should have been
deemed timely as part of a continuing violation.
Allegations (1)(a), (1)(b), and (2), however, bear no nexus to appellant's
harassment allegations � they involve different subject matters,
and different agency officials. Further, it is well-settled that the
denial of a promotion and/or a non-selection are incidents that have the
degree of permanence which should trigger an employee's duty to assert
his rights. See Jackson v. U.S. Air Force, EEOC Request No. 05950780
(June 27, 1997); Anvari v. Department of Health and Human Services, EEOC
Request No. 05930157 (June 17, 1993). Therefore, the agency's dismissal
of allegations (1)(a), (1)(b), and (2) for untimeliness was proper.
EEOC Regulation 29 C.F.R. �1614.107(e) provides, in part, that the agency
shall dismiss a complaint or a portion of a complaint that alleges that a
proposal to take a personnel action, or other preliminary step to taking
a personnel action, is discriminatory. Appellant has not presented
any evidence to suggest that the position referred to in allegation (8)
has been filled. Accordingly, the agency properly dismissed allegation
(8) as a proposal to take a personnel action.
We note, however, that when a complaint is filed on a proposed action and
the agency subsequently proceeds with the action, the action is considered
to have merged with the proposal. Charles v. Department of the Treasury,
EEOC Request No. 05910190 (Feb. 25, 1991). Appellant contends that a
selection has been made in the vacancy announcement listed in allegation
(7), and appellant was not selected. The agency's proposed action of
filling the vacancy merged into its subsequent personnel action, and,
therefore, the agency's dismissal of allegation (7) was improper.
Regarding appellant's allegation of improper processing, if a complainant
is dissatisfied with the processing of his pending complaint, he
should be referred to the agency official responsible for the quality
of complaints processing. Agency officials should earnestly attempt
to resolve dissatisfaction with the complaints process as early and
expeditiously as possible. See EEO MD 110 (4-8). Any remedial relief
to which appellant would be entitled would necessarily involve the
processing of the underlying complaint.
Appellant is advised that if he wishes to pursue, through the EEO process,
the additional reprisal allegations that he raised for the first time
on appeal (other non-selections), he shall initiate contact with an EEO
counselor within 15 days after he receives this decision. The Commission
advises the agency that if appellant seeks EEO counseling regarding
the new allegations within the above 15-day period, the date appellant
filed the appeal statement in which he raised these allegations with the
agency shall be deemed to be the date of the initial EEO contact, unless
he previously contacted a counselor regarding these matters, in which
case the earlier date would serve as the EEO counselor contact date.
Cf. Qatsha v. Department of Navy, EEOC Request No. 05970201 (Jan. 16,
1998).
CONCLUSION
Accordingly, the agency's dismissal of allegations (1)(a), (1)(b), (2),
and (8) is AFFIRMED. However, the agency's dismissal of allegations (3),
(4), (5)(a), (5)(b), (6), and (7) is REVERSED, and the allegations are
REMANDED for further processing.
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 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. 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:
Sept. 13, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations