01991495_r
11-05-1999
Dona W. Yunker, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Dona W. Yunker, )
Appellant, )
)
)
v. ) Appeal No. 01991495
) Agency No. 3-97-3025
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On August 21, 1998, appellant filed a timely appeal of a August 11,
1998 final agency decision, which was received by her on August 17,
1998, dismissing several allegations in her complaint, pursuant to 29
C.F.R. ��1614.107(a) and (b), for failure to state a claim and due to
untimely EEO Counselor contact.
The record indicates that the agency previously issued a final decision
dismissing the complaint for failure to state a claim. Upon appellant's
appeal, the Commission, in EEOC Appeal No. 01972712 (March 18, 1998),
vacated the final decision, and remanded the complaint back to the agency
for further clarification of the issues therein.
In accordance with the Commission's order, appellant's allegations were
further clarified through EEO counseling. In the instant final decision,
the agency identified the allegations of appellant's December 23, 1996
complaint as whether appellant was discriminated against based on age
(51), disability (asthma, chronic obstructive pulmonary disease, and
fibromyalgia), and in reprisal for reporting alleged fraud when:
On September 5 and 10, 1996, her supervisor asked her to type
�presentations for him� that were not related to official duty;
On July 24, 1996, the supervisor accused her of sending a letter about
an extramarital affair to her coworker's husband;
On June 17, 1996, the supervisor removed her name from a training
schedule;
On June 14, 1996, the supervisor changed her award from 40 hours to 16
hours, and submitted her name for Employee of the Month then withdrew
her name;
On October 4, 1996, the supervisor transferred her to a position in the
warehouse causing her serious health problems;
In July 1996, her Division Chief put a bag of ice in the ice machine
and marked it �Everyone except [appellant] and [an identified coworker]�;
In May 1996, the supervisor and other management officials asked her
about her entitlement to a disabled parking space;
While serving as a coffee fund keeper, her coworkers harassed her when
she decided not to support events without approval;
During 1993 to 1994, she was not selected during reclassification of
AR&SC jobs;
On August 23, 1996, the supervisor called her at home regarding time
and attendance records;
In October 1996, the supervisor harassed her about her time and attendance
record; and
On June 25, 1996, she was selected for a Microsoft course.
The agency accepted allegation (e) and dismissed allegation (i) due to
untimely EEO Counselor contact and the remaining allegations for failure
to state a claim. The agency also dismissed the basis of reprisal
since appellant failed to indicate that she was involved in any prior
EEO related activity.
Untimely EEO Counselor Contact:
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
The record indicates that the incident raised in allegation (i) occurred
during 1993 and 1994. Appellant contacted an EEO Counselor regarding
the matter on November 15, 1996, which was beyond the 45-day time limit
set by the regulations. On appeal, appellant fails to present adequate
justification to warrant an extension of the applicable time limit for
contacting an EEO Counselor pursuant to 29 C.F.R. �1614.105(a)(2).
Failure to State a Claim
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.
In order to establish standing initially under 29 C.F.R. �1614.103, a
complainant must be either an employee or an applicant for employment of
the agency against which the allegations of discrimination are raised.
In addition, the allegations must concern an employment policy or
practice which affects the individual in his/her capacity as an employee
or applicant for employment. The agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he/she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age, or disability. 29 C.F.R. ��1614.103
and .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 (April 21, 1994).
The record indicates that the incidents in allegations (a), (c), and (d)
involved appellant's duties, training, and an award. Since appellant
alleged that she sustained a personal harm or loss which affected a term,
condition, or privilege of her employment as a result of the alleged
incidents, we find that the subject allegations state a claim.
Furthermore, with regard to allegations (b), (f), (g), (j), and (k), we
find that the agency is improperly piecemealing appellant's complaint.
The Commission has previously held that 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 matters
complained of. Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 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).
Considering that the identified actions were all perpetrated
by appellant's supervisor, including other managerial officials,
and viewing the identified remarks, comments, and accusations 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).
Thus, we find that allegations (b), (f), (g), (j), and (k) stated a claim.
However, we find that allegations (h) and (l) fail to state a claim.
With regard to allegation (h), the responsible individuals were
appellant's coworkers, not appellant's supervisor or other managerial
official. Appellant indicated that she was subjected to derogatory
remarks/harassment from her coworkers when she and �the coffee committee�
decided not to use its excess funds for employees' social events.
There is no evidence in the record that appellant sustained any
personal harm or loss which affected a term, condition, or privilege
of her employment as a result of the remarks. See Henry v. United
States Postal Service, EEOC Request No. 05940695 (February 9, 1995).
It appears that the alleged incident occurred in or around July 1996,
and appellant did not allege that she was subjected to further remarks
from those coworkers at any other time.
With regard to allegation (l), appellant indicated that management offered
her a Microsoft course in order to cover up for her supervisor's improper
action, as described in allegation (c). Appellant also indicated that
she subsequently asked management to delay her selection to the Microsoft
course, which was originally scheduled on September 6, 1996. There is
no evidence in the record that appellant sustained any personal harm or
loss which affected a term, condition, or privilege of her employment
as a result of the alleged incident.
Retaliation
EEOC Regulation 29 C.F.R. �1614.101(b) provides, in part, that no person
shall be subject to retaliation for opposing any practice made unlawful
by Title VII of the Civil Rights Act (Title VII). 42 U.S.C. �2000e
et seq. Section 704(a) of Title VII (42 U.S.C. �2000e-3(a)) provides
that it shall be unlawful for an employer to discriminate against any of
his employees or applicants for employment because "he has opposed any
practice made unlawful by this title, or because he had made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this title." (Emphasis added.)
The EEO Counselor's Report indicates that appellant alleged discrimination
in reprisal for her reporting a prior fraud, waste and abuse matter to
the command. There is no evidence in the record that appellant filed
any previous EEO complaints, or engaged in any other protected activity
covered under the EEOC Regulations. Thus, we find that reprisal was
properly dismissed as a basis from appellant's complaint.
CONCLUSION
Accordingly, the agency's final decision is hereby MODIFIED.
Allegations (a) through (d), (f), (g), (j), and (k) are REMANDED to
the agency for further processing in accordance with this decision and
applicable regulations. The dismissal of allegations (h), (i), and (l)
is hereby 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. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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