Colister Slater, Appellant,v.Davis J. Barram, Administrator, General Services Administration, Agency.

Equal Employment Opportunity CommissionSep 13, 1999
01990962_r (E.E.O.C. Sep. 13, 1999)

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