01991337
11-05-1999
Denise C. Dittrich, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Denise C. Dittrich v. Department of the Treasury
01991337
November 5, 1999
Denise C. Dittrich, )
Appellant, )
)
v. ) Appeal No. 01991337
) Agency No. TD 98-1380
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On August 7, 1998, appellant filed a formal complaint, alleging
discrimination on the basis of sex (female) in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. In the
complaint, appellant alleged that she was subjected to discrimination
when:
On May 1, 1998, management issued appellant a written reprimand;
From December 1994 through May 1998, management failed to provide
appellant developmental assignments (e.g. team leader positions
on significant projects, public speaking opportunities, executive
assistant positions, examination of banks' high interest rate exposure,
and examination of large trading banks);
From early 1996 through May 31, 1998, management failed to provide
appellant with information relating to her area of specialization in
order for appellant to effectively perform her duties and assignments
(e.g. the agency did not utilize appellant's experience on issues
related to derivatives and trading activities, did not invite appellant
to meetings on interest rate risk projects, did not allow appellant
to participate in drafting OCC bulletins, and did not inform or invite
appellant to attend Headquarters and field office activities);
On February 10, 1997, management did not select appellant for two
OC-17 National Bank Examiner positions, under Vacancy Announcements
HQ-CAP-97-8001E and HQ-CAP-97-8002E;
In December 1996, management issued appellant an annual performance
appraisal that was lower than she deserved; and
Management failed to consider appellant for special act awards.
In an undated notice of processing, the agency accepted allegations
(1), (2), and (3). By a final decision (FAD), received by appellant
on November 7, 1998, the agency dismissed allegations (4), (5) and (6).
On December 3, 1998, appellant filed a timely appeal with this Commission
from the FAD.
In the FAD, the agency dismissed allegations (4), (5), and (6) pursuant
to EEOC Regulation 29 C.F.R. �1614.107(b), for untimely counselor contact.
Specifically, the agency found that appellant did not contact a counselor
for purposes of filing a complaint until April 8, 1998. The agency
acknowledged that appellant held meetings with the responsible agency
official (her supervisor), management, and EEO in June and July 1997,
but found that these meetings did not toll the forty-five (45) day time
limit to contact an EEO Counselor because appellant was attempting to
resolve her complaint outside of the EEO process. The agency also found
that the allegations were not part of a continuing violation, but were
isolated incidents. The agency dismissed allegation (4) on alternative
grounds, pursuant to 29 C.F.R. �1614.107(a), for failure to state a claim.
The agency found that appellant suffered no harm because she did not
apply for the positions raised in the allegation, and did not allege
that the agency deterred or discouraged her from applying.
On appeal, appellant argues, through her attorney, that allegations
(4)-(6) are timely under the continuing violation theory. All of the
allegations, according to appellant, stem from the actions of the same
supervisor. Further, appellant argues that all of the incidents involve
a common theme, i.e., to impede her career advancement. Appellant also
asserts that the incidents are all interrelated -- the low evaluation was
based on, in part, not being given difficult assignments, and was used
to justify not giving her better assignments; the lack of challenging
assignments and awards were grounds for failing to consider appellant
for promotions and other opportunities.
Appellant also contends that she sought EEO counseling on June 14, 1997.
She explains that when she informed management that she was filing a
complaint, management convinced her to meet with an EEO mediator and
the supervisor before she filed a complaint. The meeting took place on
July 10, 1997, and appellant waited several months for a resolution from
the agency. Since appellant was in contact with EEO, and in meetings
that involved EEO representatives until she formally began counseling
in April 1998, appellant argues that her initial counselor contact for
purposes of the statute of limitations was June 14, 1997.
Alternatively, appellant argues that the time limit should be tolled
because management misled her in an attempt to stall her complaint.
Appellant asserts that she did not continue counseling because management
assured her that they would resolve the problem informally. When the
problem was not resolved, and appellant learned of another incident,
she again contacted a counselor on April 7, 1998.
Regarding allegation (4), appellant contends that she was discouraged
from applying for positions, and thus, did suffer a cognizable harm.
According to appellant, the position descriptions (PD's) for the openings
were carefully tailored to match the experience of male colleagues, and to
exclude appellant. Further, because appellant did not receive prestigious
assignments, appellant was not qualified to apply for the positions.
In response, the agency argues that allegations (4) - (6) are not part of
a continuing violation, because appellant was aware of the discrimination
when it occurred. The agency points to appellant's meetings with EEO
and management in 1997, to prove that the incidents were discrete acts
with a degree of permanence that preclude finding a continuing violation.
If appellant was not aware of the discrimination, reasoned the agency,
then she would not have met informally with management and EEO.
Regarding appellant's contact with EEO officials on June 14, 1997,
July 1, 1997, and July 10, 1997, the agency asserts that the meetings
consisted of "a series of informal contacts." The agency contends
that EEO informed appellant of the limitations period several times,
but appellant did not choose to initiate counseling for nine months.
The agency also argues that the time limits should not be tolled.
Appellant was given an opportunity to informally resolve her concerns,
according to the agency, and made a deliberate decision to take
informal steps outside the EEO process. Further, the agency argues,
even if appellant initially contacted a counselor in 1997, she lacked
due diligence by failing to initiate counseling for nine months.
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 time
limitation can be triggered before all the facts that support a charge
of discrimination have become apparent, but not until a complainant
reasonably suspects discrimination.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her 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 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 Commission finds that appellant contacted a counselor with an
expressed intent to file a complaint on June 14, 1997. The agency admits
that appellant told her manager of the counselor contact when it occurred.
Further, appellant's delay in counseling was due to the agency's
actions, not any failure of appellant to diligently pursue her rights.
It appears that management persuaded appellant to participate in a series
of meetings that included an "EEO mediator." The Commission notes that
such proceedings, if part of an established EEO mediation program, are not
outside of the EEO process. See 29 C.F.R. �1614.105(f). Regardless, the
agency cannot assert that appellant's official counselor contact occurred
in April 1998, when management officials instructed appellant to pause.
Even considering the June 14, 1997 contact date, allegations (4) and
(5) were not timely raised. Further, it is well-settled that the denial
of a promotion and the issuance of an annual performance appraisal are
incidents that have the degree of permanence which should trigger an
employee's duty to assert her rights. See Jackson v. Department of the
Air Force, EEOC Request No. 05950780 (June 27, 1997); Anvari v. Department
of Health and Human Services, EEOC Request No. 05930157 (June 17, 1993).
Appellant should have been aware of the alleged discrimination when
she learned that her co-workers were selected for the positions on
February 10, 1997, and when she received her performance appraisal in
December 1996. Therefore, allegations (4) and (5) are not part of a
continuing violation, and were properly dismissed for untimeliness.<1>
Regarding allegation (6), the record does not present any information
concerning when appellant believed that she should have been considered
for awards, or include any information regarding when awards were given.
Therefore, the Commission is unable to determine the timeliness of
allegation (6), and the allegation must be remanded for a supplemental
investigation.
CONCLUSION
Accordingly, the agency's dismissal of allegations (4) and (5) is
AFFIRMED. The agency's dismissal of allegation (6) is VACATED, and
the allegation is REMANDED for a supplemental investigation as provided
below.
ORDER
The agency is ORDERED to perform the following:
Within forty-five (45) days of the date this decision becomes final,
the agency must conduct a supplemental investigation to determine the
dates on which appellant was denied special act awards. The agency shall
obtain an affidavit or statement from appellant concerning the dates on
which she believes that she wrongfully was not considered for a special
act award, and the dates on which she realized that she would not be
receiving such an award. The investigation also shall include, but is
not limited to, a listing of the dates on which appellant's co-workers
received special act awards. Thereafter, the agency shall include the
investigation in the record.
Within sixty (60) days of the date this decision becomes final,
the agency must determine whether appellant raised allegation (6)
in a timely manner, given a counselor contact date of June 14, 1997.
The agency will notify appellant of whether the allegation is accepted
for further processing. In addition, the agency shall submit a copy of
the notice 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:
November 5, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Since we are affirming the agency's dismissal of allegation (4) on
the grounds of timeliness, we will not address the agency's alternative
grounds for dismissal, i.e., that the allegation fails to state a claim.