01984847
01-11-2000
Debra K. Roy, Complainant, v. Lt. Gen. Kenneth A. Minihan, Director, National Security Agency, Agency.
Debra K. Roy v. National Security Agency
01984847
January 11, 2000
Debra K. Roy, )
Complainant, )
)
v. ) Appeal No. 01984847
) Agency No. 98-016
Lt. Gen. Kenneth A. Minihan, )
Director, )
National Security Agency, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final
decision of the agency concerning her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq., and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. �621 et seq.<1> The final
agency decision was issued on May 11, 1998. The appeal was submitted
by fax transmission on June 5, 1998. Accordingly, the appeal is timely
(see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
cited as 29 C.F.R. �1614.402(a)), and is accepted in accordance with
EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed the complaint
on the grounds that complainant failed to contact an EEO Counselor in
a timely manner.
BACKGROUND
Complainant initiated contact with an EEO Counselor on December 1, 1997.
On January 30, 1998, complainant filed a formal EEO complaint wherein
she alleged that she had been discriminated against on the bases of
her physical disability (respiratory impairment, allergies, multiple
chemical sensitivities) and age ( dob 12/17/52). The discrimination
allegedly occurred over the period of 1975 - November 1997. In general,
complainant claimed that the agency failed to reasonably accommodate
her by not providing her in a timely manner with a healthy, functional
working environment. Complainant also claimed that she was pressured to
resign following her allergic reactions to a coworker's use of fragrances.
Complainant further claimed that the agency has continually used irritants
and toxins and various odor emitting substances such as paints, glues,
and cleaners that have adversely affected her.
Among the specific incidents set forth by complainant were that in
October 1975, she was exposed to tobacco on the job and was diagnosed with
bronchial asthma; she suffered frequent sinus infections from December
1975 - December 1994; in May 1976, she suffered blurred vision that was
diagnosed as allergic conjunctivitis; in August 1987, paint fumes invaded
her office space and caused her to suffer reactions; in February 1988,
she was moved to an overcrowded office and had a reaction to a coworker's
perfume; in May 1990, she had reactions to the aerial spraying of a
pesticide; in October 1990, her allergy was aggravated by her supervisor's
perfume; in May 1993, complainant had severe reactions to the smell of
coffee after she was moved closer to the coffee mess; in February 1995,
she had a reaction to the carpet shampoo when her office was moved; in
September 1995, painting started in the corridor outside of her office
even though she had been told that she would receive two weeks notice
of such activity; the fresh paint smell caused her to develop sores;
she vomited at work and experienced nausea as reactions to a drug,
fresh paint, and exposure to glue; on February 2, 1996, she suffered
nausea and a headache due to the smell of the new ink cartridge in the
laser printer; complainant developed nasal irritation and a headache
due to perfume exposure and an agency physician suggested that she
consider leaving the agency because of her sensitivity to fragrances;
in October 1997, complainant experienced severe sinus headaches due to
perfume exposure and an agency physician pressured her to leave the
agency; and in December1997, complainant suffered severely irritated
nasal passages and nausea due to a coworker's perfume.
In its final decision, the agency dismissed the complaint on the grounds
of mootness and failure to state a claim. The agency determined that on
April 15, 1998, complainant was offered and she accepted a reasonable
accommodation for her disability. The agency noted that complainant
claims discrimination dating back to 1975. The agency dismissed the
complaint also on the grounds of untimely EEO Counselor contact
On appeal, complainant contends that her complaint is not moot in light
of her request for compensatory damages. Complainant maintains that the
agency did not solicit information from her about her damages. Further,
complainant argues that the purported accommodation provided her in
April 1998, caused her to become sick. Complainant contends that the
agency has demonstrated bad faith.
By letter dated July 10, 1998, the agency informed the Commission that
in light of the fact that the reasonable accommodation provided to
complainant had failed to meet her needs, it was now accepting the issue
of whether it failed to accommodate complainant's disability in October
and November 1997. The agency stated that this issue would be included
in its investigation of the complaint filed by complainant in May 1998,
Agency No. 98-024. However, the agency stated that its previous decision
stands with regard to its dismissal of claims dating from 1975 through
September 1997.
In response to the instant appeal, the agency asserts with regard to
the claims dating from 1975 through September of 1997, that the cited
incidents were sufficiently discrete to cause complainant to contact an
EEO Counselor. The agency maintains that complainant had an awareness
of the alleged discrimination long before she initiated contact with an
EEO Counselor. According to the agency, many of the reported incidents
were promptly remedied. The agency asserts that it has acted in good
faith throughout the process, attempting to identify and provide an
accommodation for complainant.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1613.214(a)(1)(i) required that complaints
of discrimination should have been brought to the attention of the
Equal Employment Opportunity Counselor within thirty (30) calendar days
of an alleged discriminatory event, the effective date of an alleged
discriminatory personnel action, or the date that the aggrieved person
knew or reasonably should have known of the discriminatory event or
personnel action. EEOC Regulation 29 C.F.R. �1614.105(a)(1) extended
the time limit for contacting an EEO Counselor to forty-five (45) days
for actions occurring on or after October 1, 1992, the effective date
of the new regulations.
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).
The record reveals that complainant initiated contact with an EEO
Counselor on December 1, 1997. This contact was more than 45 days
after the incidents that occurred prior to October 1997. Complainant
maintains that the alleged incidents constitute a continuing violation
because the discrimination has been ongoing dating back to 1975.
Although the evidence indicates that complainant had or should have had
a reasonable suspicion of discrimination more than forty-five (45) days
prior to initiating EEO contact, this does not preclude acceptance of
the overall claim of ongoing discrimination. Howard-Grayson v. United
States Postal Service, EEOC Request No. 05990160 (December 3, 1999);
Ferguson v. Department of Justice, EEOC Request No. 05970792 (March 30,
1999); Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 30, 1994). Furthermore, where a complainant has shown that
his or her timely incident is interrelated to incidents outside the
45-day time limit, the agency should not fragment complainant's claim by
dismissing, under the reasonable suspicion theory, specific identified
incidents outside the 45 day time limitation that are associated with
or connected to the subject matter and temporal scope of the complaint.
Ferguson, supra. We find that complainant has established a continuing
violation. It is clear that the acts which fall outside the time
period for contacting an EEO Counselor are interrelated by a common
nexus to the incidents that were raised in a timely manner. The common
theme throughout the complaint is the exposure of complainant to various
substances in her work environment that caused her to experience adverse
reactions. Further, an incident where complainant was pressured to
resign is interrelated to a similar incident within the 45-day time limit.
Therefore, we find that complainant's claims are sufficiently interrelated
and constitute a continuing violation. Meaney, supra. Accordingly,
the agency's decision to dismiss the complaint involving incidents
that occurred prior to October 1997, was improper and is REVERSED.
These claims are hereby remanded for further processing pursuant to the
ORDER below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant 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 complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
January 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.