Edna Gatewood, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 1, 2000
01985595 (E.E.O.C. Mar. 1, 2000)

01985595

03-01-2000

Edna Gatewood, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Edna Gatewood v. Department of Veterans Affairs

01985595

March 1, 2000

Edna Gatewood, )

Complainant, )

)

v. ) Appeal No. 01985595

Togo D. West, Jr., ) Agency No. 94-926

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On July 7, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by her on June 13, 1998,

pertaining to 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. <1> In her complaint, complainant alleged that

she was subjected to discrimination on the bases of race (Black), sex

(female), and in retaliation for prior EEO activity when:

In December 1997, personnel issued a list of people to receive an

award certificate but omitted complainant's name which resulted in

complainant's delayed receipt of the award;

On September 18, 1997, complainant was subjected to an examination;

On July 29, 1997, complainant had not been upgraded to a GS-9 position;

Complainant suffered continual harassment;

Complainant received her June 7, 1995 performance appraisal;

On March 30, 1997, complainant became aware of a training course in

"crown and bridge" scheduled for April 3, 1997, and as a result almost

missed it;

Complainant was not getting the proper respect from her co-workers

in terms of placement of a cabinet, slow delivery of supplies, and

requests that another co-worker sign off on deliveries, which resulted

in a hostile work environment; and

On May 30, 1997, the agency failed to comply with a previously issued

EEOC Order.

The agency dismissed issues (3) and (8) for failure to state a claim.

Specifically, the agency claimed that these allegations of non-compliance

with a previously issued Order in EEOC Appeal No. 01953321 (May 30, 1997)

should have been addressed via a petition for enforcement and not through

a new complaint. The agency also dismissed issues (1), (4), (6), and

(7) for failure to state a claim. Specifically, with regard to issue

(1), the agency stated that although complainant's receipt of her award

certificate was delayed, she did receive the certificate and thus, was

not harmed with regard to a term, condition, or privilege of employment.

With regard to issue (6), the agency again found that although complainant

was not informed of the training course until the last minute, she

was still able to attend the course and therefore suffered no harm.

With regard to issues (4) and (7), the agency found that the working

conditions described did not indicate that complainant suffered a loss or

harm with regard to a term or condition of employment. Furthermore, the

agency stated that complainant's allegations were isolated occurrences and

did not rise to the level of an actionable hostile work environment claim.

The agency dismissed issue (5) for untimely EEO Counselor contact and

under the doctrine of laches. Finally, the agency dismissed issues

(2) and (5) for failure to raise these matters with an EEO Counselor.

Specifically, the agency claimed that issues (2) and (5) were not

discussed with an EEO Counselor and were not like or related to issues

that were discussed with a counselor.

On appeal, complainant reiterates that she was entitled to the GS-9

position based on the Commission's Order in EEOC Appeal No. 01953327 (May

30, 1997). Complainant further states that the agency failed to comply

with the Commission's Order by failing to submit a copy of the compliance

report to complainant, failing to give complainant full seniority and

benefits due her, and failing to implement retroactively to April 1991,

thrift savings plan deductions. In addition, complainant claims that

the agency discriminated against her when her name was omitted from

the Employee Recognition Ceremony list while all other general schedule

employees names were included.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an

agency shall dismiss a complaint that fails to state a claim. An agency

shall accept a complaint from any aggrieved employee or applicant for

employment who believes that he or she has been discriminated against by

that agency because of race, color, religion, sex, national origin, age or

disabling condition. 29 C.F.R. �� 1614.103, .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

22, 1994).

With regard to issues (3) and (8), we find that the agency properly

dismissed these issues pursuant to 29 C.F.R. � 1614.107(a)(1). We note

that since these issues involve allegations of noncompliance with a

prior Commission Order in EEOC Appeal No. 01953327, these issues must

be processed under 29 C.F.R. � 1614.503. Accordingly, issues (3) and

(8) have been redocketed and are currently being processed as a petition

for enforcement under EEOC Petition No. 04A00009.

In her complaint, complainant alleged that she was subjected to

harassment. 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, complainant alleged that she was subjected to

harassment which created a hostile work environment. While the agency

dismissed issues (1), (4), (6), and (7) for failure to state a claim,

upon review, we find that the agency failed to look at these issues

in consideration of complainant's contention that all of these matters

constituted harassment based on her race, sex, and in retaliation for

her prior EEO activity. When viewed in this light, clearly complainant's

contention that she was harassed when her name was omitted from an award

list, her award was delayed, she was not told of a training course until

immediately before it was scheduled to take place, she was not given the

proper respect by co-workers with regard to the placement of a cabinet,

slow delivery of supplies, and requests that another employee sign off

on deliveries rather than complainant, states a claim. See Cervantes

v. United States Postal Service, EEOC Request No. 05930303 (November 12,

1993). Accordingly, the agency's decision to dismiss issues (1), (4),

(6), and (7) was improper. These issues are hereby REMANDED for further

processing in accordance with the ORDER below.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that an

agency shall dismiss a complaint which raises a matter that has not been

brought to the attention of an EEO Counselor, and is not like or related

to a matter on which the complainant has received counseling. A later

claim or complaint is "like or related" to the original complaint if the

later claim or complaint adds to or clarifies the original complaint and

could have reasonably been expected to grow out of the original complaint

during the investigation. See Scher v. United States Postal Service,

EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal

Service, EEOC Request No. 05891068 (March 8, 1990).

The agency dismissed issues (2) and (5) for failure to raise the matters

with the EEO Counselor. We find, however, that in view of complainant's

claim of hostile work environment harassment, it appears that issues (2)

and (5) could be considered additional incidents of the alleged harassment

and, therefore, like or related to matters on which complainant received

counseling. Therefore, we find that the agency's dismissal of issues

(2) and (5) pursuant to 29 C.F.R. � 1614.107(a)(2) was improper.

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 Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

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.

The agency dismissed issue (5) on the alternative grounds of untimely

EEO Counselor contact pursuant to 29 C.F.R. �1614.105(a)(1). The record

indicates that complainant filed a prior EEO complaint which proceeded

to an EEOC hearing in January, 1995, thus indicating that complainant

was aware of the time limitation period for timely contacting an EEO

Counselor. Complainant failed to produce any evidence to warrant the

extension of the forty-five (45) day limitation period for initiating EEO

Counselor contact. The record indicates that complainant did not initiate

EEO Counselor contact regarding her June 7, 1995 performance appraisal

until August 28, 1997. Thus, the Commission finds that complainant should

have reasonably suspected discrimination regarding issue (5) when she

received her June 7, 1995 performance appraisal, which was more than

(45) days before complainant contacted an EEO Counselor. Accordingly,

the agency's dismissal of issue (5) was proper pursuant to 29 C.F.R. �

1614.107(a)(2).

Accordingly, we find the agency's dismissal of issues (3), (5), and (8)

was proper and is hereby AFFIRMED. The agency's dismissal of issues (1),

(2), (4), (6), and (7) was improper and is hereby REVERSED. These issues

are REMANDED to the agency for further processing in accordance with

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 (T1199)

This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR

DAYS from the date that you receive this decision 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. 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 (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:

March 1, 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

1On 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.