01986072_r
10-12-1999
Debra Dunn, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Debra Dunn, )
Appellant, )
)
v. ) Appeal No. 01986072
) Agency No. 96-67001-023
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
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. Appellant received the final agency decision on
July 13, 1998. The appeal was postmarked August 4, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
1. The first issue presented is whether the agency properly dismissed
allegations 4(a) - 4 (e) of appellant's complaint on the grounds of
failure to state a claim.
2. The second issue presented is whether the agency properly dismissed
allegations 4(a), 4(e), and 4(f) on the grounds of untimely EEO contact.
BACKGROUND
Appellant initiated contact with an EEO Counselor on April 30, 1996. In a
formal EEO complaint dated June 24, 1996, appellant alleged that she was
discriminated against on the bases of her race (black) and sex (female).
The allegations in appellant's complaint were delineated as follows:
2. a. Appellant was required to take 30 minutes of annual leave on March
20, 1996, as a result of being tardy. A white female employee was also
tardy but was not charged leave.
b. Appellant was required to submit issues of concern regarding
leave through the chain of command before she could speak with the
Base Property Control Officer. A white female employee was allowed
to go directly to the Base Property Control Officer without following
the chain of command.
4. a. Appellant's second level supervisor stares at her breasts and
on occasion her legs. She claims that he also told a dirty joke in
January 1995.
b. There is an inequitable workload distribution within appellant's
work area between herself and a white female employee.
c. White employees are allowed to leave for unaccounted periods of
time. Employees other than appellant are allowed to leave early and
were told of the availability of 59 minutes of administrative leave.
Management closely scrutinizes when she punches in on the clock and
her movements are under constant scrutiny.
d. Appellant is not informed in a timely fashion of deadlines for
work assignments.
e. On May 12, 1995, an employee slapped another employee. In February
1993, appellant was referred to as a �black bitch� by her immediate
supervisor. Another person was injured and no one rendered assistance
to that person.
F. Appellant was denied a review of her position description �last
year.�
In its initial final decision dated October 3, 1996, the agency accepted
allegations 2(a) and 2(b) for investigation. The agency dismissed
allegations 4(a)-4(e) on the grounds of failure to state a claim.
Allegations 4(a), 4(e), and 4(f) were dismissed on the grounds of failure
to contact an EEO Counselor in a timely manner.
Thereafter, appellant filed an appeal with the Commission.
In Debra Dunn v. Department of the Navy, EEOC Appeal No. 01970494(March
10, 1998), the Commission vacated the final agency decision and remanded
the complaint for further processing. With regard to the dismissal
on the grounds of failure to state a claim, the Commission noted that
appellant stated that she was subjected to a hostile work environment
on the bases of her sex and race. The Commission found that the agency
failed to consider whether the dismissed allegations, in conjunction
with the accepted allegations, state a claim of harassment. As for
those allegations dismissed on the grounds of untimely EEO contact, the
Commission found that because the incidents in allegations 4(a) and 4(e)
are examples of the alleged hostile work environment, the agency should
consider whether these allegations are timely under the continuing
violation theory. The Commission noted that even if appellant should
have reasonably suspected discrimination at the time of the incidents,
appellant would not be expected to raise allegations of a hostile work
environment until the examples of the harassment were such that the
claim would state a claim of a hostile work environment. With regard
to allegation 4(f), the Commission found that it is unclear as to when
appellant is alleging that this incident of alleged discrimination
occurred. The Commission remanded this allegation so that the agency
could contact appellant to clarify when the denial or denials of a review
of appellant's position description occurred.
In the final decision currently under review, the agency dismissed
allegations 4(a)-4(e) of appellant's complaint on the grounds of failure
to state a claim. The agency determined that these incidents were not
sufficiently pervasive or severe to constitute harassment. The agency
concluded that the allegations were unrelated, and that appellant never
experienced or witnessed some of the incidents. The agency determined
with regard to the issue of administrative leave that appellant did not
indicate nor allege that she ever requested administrative leave which
was denied. Allegations 4(a) and 4(e) were dismissed on the grounds
that appellant failed to contact an EEO Counselor in a timely manner.
The agency determined that these allegations do not meet the criteria
of a continuing violation. The agency determined that the alleged
incidents lack a common nexus or theme, and that they did not occur
on a recurring basis. According to the agency, the alleged acts were
separate and distinct decisions made by several different individuals
over a period from 1992 through 1996. Further, the agency noted that
the relevant incidents occurred in 1993 and 1995, approximately three
years and one year prior to appellant's EEO contact on April 30, 1996.
The agency also dismissed allegation 4(f) on the grounds of untimely EEO
contact. According to the agency, it requested that appellant clarify
the dates that she was denied a review of her position description,
but appellant failed to respond. The agency noted that appellant has
had ample opportunity to present documentation and evidence to establish
this allegation is timely, but that she has failed to do so. Thereafter,
appellant filed the instant appeal.
ANALYSIS AND FINDINGS
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.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (March
13, 1997).
In the present case, appellant contends that she was subjected
to harassment and a hostile work environment when her second level
supervisor stared at her breasts and legs and told a dirty joke; there
was an inequitable work distribution in her work area between herself
and another employee; management constantly scrutinizes her movements
and when she punches in on the clock; she is not informed in a timely
fashion of deadlines for work assignments; and she was called a �black
bitch� by her immediate supervisor. Viewing these identified incidents
in conjunction with those incidents in the accepted allegations in the
light most favorable to appellant, we find that appellant has stated a
cognizable claim under the EEOC Regulations. See Cervantes v. United
States Postal Service, EEOC Request No. 05930303 (November 12, 1993).
Accordingly, the agency's decision to dismiss allegations 4(a), 4(b),
4(c), 4(d), and the portion of allegation 4(e) concerning appellant
being called a �black bitch� by her immediate supervisor for failure
to state a claim was improper and is REVERSED. These allegations are
hereby REMANDED for further processing in accordance with the ORDER below.
With regard to those portions of allegation 4(e) where appellant
alleged that an employee slapped another employee, and an individual
was injured but not offered assistance, we find that appellant has
not established that she suffered a personal harm or loss to a term,
condition, or privilege of her employment as a result of these incidents.
Appellant was not personally involved in these incidents and she has
not established that she was rendered aggrieved by the alleged actions.
Accordingly, the agency's decision to dismiss these portions of allegation
4(e) was proper and is AFFIRMED.
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
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 McGovern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. 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 determining whether a continuing violation exists, the Commission
has relied on the decision in Berry, wherein the court set forth three
relevant factors:
The first is subject matter. Do the alleged acts involve the same type
of discrimination, tending to connect them in a continuing violation?
The second is frequency. Are the alleged acts recurring (e.g., a
biweekly paycheck) or more in the nature of an isolated work assignment
or employment decision? The third factor, perhaps of most importance,
is degree of permanence. Does the act have the degree of permanence
which should trigger an employee's awareness of and duty to assert
his or her rights, or which should indicate to the employee that the
continued existence of the adverse consequences of the act is to be
expected without being dependent on a continuing intent to discriminate?
Berry, 715 F.2d at 981. Incidents that are sufficiently distinct
to trigger the running of the limitations period do not constitute
continuing violations. See, e.g., Miller v. Shawmut Bank, 726
F. Supp. 337, 341 (D. Mass. 1989); Cogen v. Milton Bradley Co./Hasbro
Inc., 449 Empl. Prac. Dec. (CCH) �38,894 (D. Mass. 1989). In Cogen,
the court rejected the plaintiff's attempt to apply the continuing
violation theory to, among other allegations, an assignment issue.
The court stated that "discrete acts of discrimination taking place
at identifiable points in time" are not continuing violations for the
purpose of extending the limitations period. Id. at 58,757; see also
Edinboro v. Department of Health & Human Services, 704 F. Supp. 364,
367 (S.D. N.Y. 1988) (demotion not a continuing violation).
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
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 the
overall discriminatory pattern).
We find with regard to allegations 4(a) and the portion of allegation 4(e)
wherein appellant was referred to as a �black bitch� by her immediate
supervisor that these allegations form part of a continuing violation of
a hostile work environment. As noted in the previous decision, even if
appellant should have reasonably suspected discrimination at the time
of the incidents, appellant would not be expected to raise allegations
of a hostile work environment until the examples of the harassment were
such that the claim would state a claim of a hostile work environment.
We find that these allegations are sufficiently related to the timely
allegations in terms of the common theme of creating a hostile work
environment. Accordingly, the agency's decision to dismiss allegation
4(a) and the aforementioned portion of allegation 4(e) on the grounds
of untimely EEO contact was improper and is REVERSED.
With respect to allegation 4(f), we find that appellant has not
established that she initiated EEO contact in a timely manner. The record
indicates that the agency requested that appellant specify when she was
denied a review of her position description. Appellant did not respond to
the agency's request. Based on the record, appellant has not specified
an incident more recent than �last year�. In light of the fact that
appellant's EEO contact did not occur until April 30, 1996, any denial of
appellant's request for a review of her position description from the past
year must have occurred more than 45 days before appellant contacted an
EEO Counselor. Accordingly, the agency's decision to dismiss allegation
4(f) on the grounds of untimely EEO contact was proper and is AFFIRMED.
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. 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:
October 12, 1999
DATE Carlton
M. Hadden,
Acting Director
Office of Federal Operations