01991610
11-05-1999
Dorothy J. Filber, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Dorothy J. Filber v. Department of the Treasury
01991610
November 5, 1999
Dorothy J. Filber, )
Appellant, )
)
v. ) Appeal No. 01991610
) Agency No. 98-3284
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
______________________________)
DECISION
On December 19, 1998, appellant filed a timely appeal from the agency's
November 19, 1998 final decision (FAD), received on November 21, 1998,
which partially dismissed appellant's September 17, 1998 formal EEO
complaint for failure to state a claim, and untimely EEO Counselor
contact, pursuant, respectively, to 29 C.F.R. ��1614.107(a) and .107(b),
in pertinent parts. We accept appellant's appeal pursuant to EEOC Order
No. 960, as amended, and, for the reasons set forth below, modify the
FAD.
The agency accepted for investigation appellant's allegation that
she was discriminated on the basis of age, in violation of the Age
Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. �621 et seq.,
when her manager advised her, on June 19, 1998, that she would have to
return periodically from her detail to do audits.
In separate correspondence, the FAD dismissed approximately a dozen
allegations for failure to state a claim or untimely EEO Counselor
contact. Appellant's complaint itself contained numerous allegations,
in outline form, some of which were vague. Moreover, the FAD assigned
several numbers to a single allegation, while not denominating other
allegations.
The FAD dismissed all allegations that occurred more than forty-five
days prior to appellant's EEO Counselor contact of May 26, 1998. See 29
C.F.R. �1614.105(a)(1). The FAD identified the cutoff date as "before
April 10, 1998," for timeliness purposes. The FAD further declared that
appellant's allegations did not constitute a continuing violation.
The FAD also dismissed certain allegations of appellant's for failure to
state a claim. The FAD concluded that appellant suffered no harm when:
the time her Manager directed her to charge to cases would make them age
without being acted upon; her Manager discussed her credit hours with her;
her Manager asked her questions about a detail, which she was unable to
answer; her Manager discussed her use of credit hours; her evaluation was
delayed; and her Manager told her the Branch Chief "calls the shots." The
FAD also declared that appellant's allegations did not rise to the level
of age-based harassment or hostile work environment. In addition, the
FAD found appellant failed to state a claim of retaliation with regard
to information appellant purportedly share with an Internal Auditor.
Finally, the FAD found that, prior to her EEO complaint, appellant had
filed a negotiated grievance, under a collective bargaining agreement
(CBA) that permitted claims of discrimination to be raised, with regard
to her evaluation that she received in April 1998. The FAD also noted
that appellant's grievance had been settled when the agency raised some
of her ratings. Therefore, the FAD dismissed the allegation pertaining
to appellant's April 1998 evaluation, for the period ending November
30, 1997. See 29 C.F.R. �1614.107(d).
The Commission finds the agency improperly treated appellant's
complaint in piecemeal fashion, when a fair reading of the record as
a whole, including her complaint, reveals that appellant is alleging a
pattern of ongoing harassment and a hostile work environment. See Drake
v. Department of the Air Force, EEOC Request No. 05970689 (March 29,
1999); Tilden v. Department of the Army, EEOC Appeal No. 01976352 (July 2,
1998); Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994).
However, the Commission determines that the FAD properly found that
all of appellant's allegations that occurred more than forty-five days
prior to appellant's May 26, 1998 EEO contact are untimely; that is,
any incident arising prior to April 11, 1998. See 29 C.F.R. �1614.604.
We find, from appellant's statements, that she believed she had been
discriminated against on the basis of age dating back to at least 1994.
Therefore, we find inapplicable to the present case the continuing
violation theory, which would permit appellant's untimely allegations
to be processed with her timely allegations. See Sabree v. United
Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st
Cir. 1990). We are not persuaded by appellant's contention on appeal
that mental incapacitation precluded her from contacting an EEO Counselor
in a timely manner. We find appellant has submitted no evidence that
supports such an argument. See Kapp v. Department of the Navy, EEOC
Request No. 05940662 (January 23, 1995).
Appellant is advised, however, that those allegations which have been
dismissed on timeliness grounds may be used as background evidence in
support of her timely allegations and her claim of harassment/hostile
work environment.
As to those allegations dismissed for failure to state a claim, the
Commission finds that those allegations may also be used in support
of appellant's claim of harassment/hostile work environment. We find
that the agency has improperly identified certain matters raised in
appellant's complaint. For example, we find that the agency misconstrued
appellant's allegation pertaining to her Manager's discussing appellant's
credit hours. We find appellant alleged in her complaint that, on May
21, 1998, she was "chewed out" by her Manager regarding "training credit
hours," after removing her from a room where she was taking a test.
The Commission finds this allegation to be cognizable within the
overall context of her claim of harassment/hostile work environment.
With regard to the assertion that the Branch Chief "calls the shots,"
we find appellant was actually referring in her complaint to an incident
involving a March 24, 1998 audit during which the Manager said the Branch
Chief did not like appellant. In addition, we find the agency improperly
dismissed, de facto, appellant's allegation that, in June 1998, she was
denied a detail.
The Commission agrees with the FAD's dismissal of appellant's claim of
retaliation. We find no basis in any statute within the jurisdiction of
the Commission that covers appellant's assertion that she was retaliated
against for a "meeting with Internal Security."
In addition, the Commission finds that appellant's allegation pertaining
to the ratings of her performance evaluation, which she received in
April 1998, may not be litigated in the EEO forum because of appellant's
prior grievance. However, appellant may raise her allegation, that the
agency improperly delayed providing her with the evaluation, as part
of her overall claim of pervasive harassment/hostile work environment.
See Riden v. Department of the Treasury, EEOC Request No. 05970314
(October 2, 1998). The Commission finds, in the present case, that the
agency's argument in opposition to appellant's appeal, that appellant's
harassment claim is not actionable, improperly goes to the merits of her
complaint. See Riden, supra; and Adkins v. Department of the Treasury,
EEOC Appeal No. 01956790 (October 15, 1996).
Having reviewed the entire record, the arguments on appeal, including
those not expressly addressed herein, and for the foregoing reasons,
the Commission makes the following determinations:
(A) The Commission AFFIRMS the FAD's dismissal of appellant's allegations
arising prior to April 11, 1998.
(B) The Commission AFFIRMS the FAD's dismissal of appellant's basis of
retaliation;
(C) The Commission AFFIRMS the agency's dismissal of the allegation
pertaining to the ratings of her April 1998 performance evaluation.
(D) The Commission hereby REVERSES the FAD's dismissal of appellant's
remaining allegations for failure to state a claim.
Appellant's complaint is hereby REMANDED for further processing consistent
with the Commission's decision and applicable regulations. The parties
are advised that this decision is not a decision on the merits of
appellant's complaint. The agency is hereby directed to comply with
the Commission's ORDER set forth below.
ORDER
The agency is hereby ORDERED to take the following actions:
1. The agency shall process the remanded allegations in accordance with
29 C.F.R. �1614.108. The agency shall acknowledge to appellant that it
has received the remanded allegations within thirty (30) calendar days
of the date this decision becomes final. These remanded allegations
shall include those allegations in appellant's complaint that the agency
dismissed on timeliness grounds, but which appellant may be permitted to
use as background evidence in support of her claim that the Commission
has found is properly defined as harassment/hostile work environment
based on age.
2. The agency shall, in addition, process those remanded allegations
that the agency dismissed for failure to state a claim, as well as those
allegations raised by appellant in her complaint but omitted by the agency
in its final decision, such as the alleged denial of appellant's detail
in June 1998. All allegations, therefore, shall be investigated within
the context of appellant's claim of harassment/hostile work environment
based on age.
3. 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 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.
4. A copy of the agency's letter of acknowledgement 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. �l6l4.604(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:
11/05/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations