01984520
09-07-1999
Elisabeth A. Seawright, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Elisabeth A. Seawright v. Department of the Army
01984520
September 7, 1999
Elisabeth A. Seawright, )
Appellant, )
)
v. ) Appeal No. 01984520
) Agency No. AWGRFO9801I0030
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On May 20, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated April 15, 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.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq.<1> In her complaint appellant alleged that she
was subjected to discrimination on the bases of sex (female) and age
(47) when:
Appellant received an unfair annual performance rating; and
Appellant was subjected to disparate treatment and sexual harassment
through the creation of a hostile work environment, including:
On or about Fall of 1996, an employee threatened to bring a gun and shoot
some people, and appellant's supervisors used it as an opportunity to
scare appellant;<2>
On unspecified dates, a younger female employee was allowed to go into
a leave without pay status;
On an unspecified date, appellant's supervisor (S1) was upset about
appellant's selection for an accounting clerk position;
On unspecified dates, male employees were permitted to run errands during
the day;
In the summer of 1993, management canceled a vacant engineering
tech position after it was discovered that appellant already had the
qualifications for the position;
In the summer of 1993, the Chief of Survey and Drafting (CSD) gave
appellant a poor performance rating;
On unspecified dates, appellant was told to come to work before 9:00 in
the morning;
On an unspecified date, S1 told appellant that an individual was not
chosen for a permanent position because of his defense of her;
On or before May 1996, appellant's performance ratings continued to have
time and attendance mentioned as a problem;
On or about June 16, 1997, several male employees were observing another
supervisor's (S2) new truck;
On unspecified dates, a younger female employee was permitted to leave
for periods of an hour or two because of stress and grief, but appellant
was never shown sympathy in this way;
On an unspecified date, appellant's credit card was terminated when she
went to North Dakota to participate in emergency operations and S2 told
the credit card company that he could not verify the legal use of the
card;
Un an unspecified date a desk audit was performed which caused appellant's
title to be changed from "Budget and Accounting Clerk" to "Accounts
Maintenance Clerk" and the word "specialized" to be removed from her
job description;
On unspecified dates, S1 and S2 singled appellant out to distinguish
between time she spent on union duties and time she spent performing
the duties of her position; and
On or before May 6, 1997, a sexually explicit drawing of appellant's
ex-husband was placed in her office for several days.<3>
In her formal complaint, appellant further alleged that the foregoing was
"by no means all [she has] been subjected to for years by [the agency].
The agency accepted allegation (1) for investigation and dismissed
allegation (2) in its entirety pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for failure to initiate contact with an EEO Counselor
in a timely manner. Specifically, the agency determined that because
none of the specific incidents which made up allegation (2) occurred
within forty-five (45) days of appellant's January 5, 1998 initial EEO
Counselor contact, allegation (2) was untimely.
In its response to appellant's appeal, the agency argues that
appellant was not able to establish a continuing violation because the
incidents share no common nexus or theme with the timely allegation of
discrimination.
The Commission notes that appellant acknowledged that she initiated
contact with the agency's EEO office in the summer of 1993, after
receiving her poor performance rating. Appellant did not file a
complaint, however, because she decided that an EEO complaint "was not
a priority at [that] time," and that she had no "faith in the system."
Additionally, the record contains a Step II grievance decision dated
November 5, 1997, in which allegation (M) was one of the issues raised.
Although the agency dismissed allegations (b), (c), (d), (h), (j),
and (k) for untimely EEO Counselor contact, the Commission need not
determine the timeliness of those allegations, as we find that dismissal
is appropriate pursuant to 29 C.F.R. �1614.107(a), for failure to state
a claim. EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant
part, that an agency shall dismiss a complaint, or portion thereof,
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; �1614.106(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).
In allegations (b), (d), (h), (j), and (k), appellant identified actions
taken by or against third parties, without showing how those incidents
related to the terms, conditions or privileges of her own employment.
Appellant is advised that she may use these incidents as evidence of
disparate treatment, but they do not state an independent claim under
the EEOC regulations. Similarly, while appellant may use the incident
identified in allegation (c) as evidence of S1's discriminatory animus,
appellant failed to show how she suffered harm to the terms, conditions
or privileges of her employment as a result of S1's displeasure in
appellant's selection for an accounting clerk position. Consequently,
dismissal of allegations (b), (c), (d), (h), (j), and (k) was proper
for failure to state a claim.
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.
In the instant case, the Commission finds that there is insufficient
evidence in the record for a determination of whether allegations (g),
(l), (m), and (n) were timely raised with an EEO Counselor. Appellant
failed to identify the dates on which these incidents occurred, and the
agency failed to request such information from her. Where, as here,
there is an issue of timeliness, "[a]n agency always bears the burden of
obtaining sufficient information to support a reasoned determination as
to timeliness." Guy, v. Department of Energy, EEOC Request No. 05930703
(January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department
of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission
stated that the agency has the burden of providing evidence and/or proof
to support its final decisions. See Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992). As the agency failed to
fully develop the record to indicate when the incidents identified in
allegations (g), (l), (m), and (n) occurred, the Commission must remand
those allegations for such a determination to be made.
With regard to allegations (a), (e), (f), (i), and (o), it is clear from
the record that they were untimely, as the incidents identified therein
occurred more than forty-five (45) days from appellant's January 5,
1998 initial EEO Counselor contact. However, appellant alleged that
she was subjected to discriminatory conduct "for years." Accordingly,
a determination must be made as to whether appellant established a
continuing violation.
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 (April 22, 1999); McGivern v. U.S. Postal
Service, EEOC Request No. 05901150 (December 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 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).
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 (October 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.
Jackson v. Department of the Air Force, EEOC Request No. 05950780 (June
27, 1997).
In its final decision, the agency failed to consider the question of a
continuing violation. The Commission has held that where the agency has
failed to consider this issue, the case must be remanded for consideration
of whether appellant established a continuing violation and issuance
of a new final agency decision making a specific determination under
the continuing violation theory. Guy v. Department of the Energy,
EEOC Request No. 05930703 (January 4, 1994). However, on appeal, the
agency argues that appellant's complaint does not constitute a continuing
violation. Though the agency did not address the issue of continuing
violation in its final decision, we find that it would be futile to
remand appellant's complaint for consideration of this issue, as it has
been addressed by the agency on appeal. Therefore, we will determine
whether the dismissed allegations constitute a continuing violation.
We find that appellant can not establish a continuing violation, as the
record discloses that she had a reasonable suspicion of discrimination
in the summer of 1993, when she sought EEO counseling. As appellant
failed to assert her EEO rights at that time, we find that she may not
now rely on the continuing violation theory to include allegations of
discrimination which occurred more than forty-five (45) days before her
January 5, 1998 initial EEO Counselor contact. Based on the foregoing,
we find that allegations (a), (e), (f), (i), and (o) were properly
dismissed pursuant to 29 C.F.R. �1614.107(b).
The Commission notes that the record contains a Step II grievance
response which suggests that appellant raised the matter identified in
allegation (m) in the negotiated grievance procedure. EEOC Regulation 29
C.F.R. �1614.301(a) states that when a person is employed by an agency
subject to 5 U.S.C. �7121(d) and is covered by a collective bargaining
agreement that permits allegations of discrimination to be raised in a
negotiated grievance procedure, a person wishing to file a complaint or
grievance on a matter of alleged employment discrimination must elect
to raise the matter under either part 1614 or the negotiated grievance
procedure, but not both. An aggrieved employee who files a grievance with
an agency whose negotiated agreement permits the acceptance of grievances
which allege discrimination may not thereafter file a complaint on the
same matter under this part 1614 irrespective of whether the agency has
informed the individual of the need to elect or whether the grievance
has raised an issue of discrimination. As the record does not disclose
whether the agency's collective bargaining agreement permits allegations
of discrimination to be raised in the negotiated grievance procedure,
the agency may address this matter on remand.
Accordingly, the agency's final decision dismissing allegations (a),
(b), (c), (d), (e), (f), (h), (i), (j), (k), and (o) is AFFIRMED for the
reasons set forth herein. The agency's decision to dismiss allegations
(g), (l), (m), and (n) is hereby VACATED. Allegations (g), (l), (m),
and (n) are REMANDED to the agency for further processing in accordance
with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall undertake a supplemental investigation to determine
the dates on which allegations (g), (l), (m), and (n) occurred.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a notice of processing and/or a new FAD regarding
allegations (g), (l), (m), and (n).
A copy of the agency's notice of processing and/or new FAD 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 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:
Sept. 7, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date appellant received
the agency's final decision. Accordingly, since the agency failed to
submit evidence of the date of receipt, the Commission presumes that
appellant's appeal was filed within thirty (30) days of receipt of the
agency's final decision. See, 29 C.F.R. �1614.402.
2Although no specific date was identified with this incident, appellant
indicated that it occurred shortly after the agency moved to a new
location. As appellant failed to produce any evidence rebutting the
agency's contention that this move occurred in the fall of 1996, the
Commission will accept this date as the approximate date on which this
allegation occurred.
3Although neither appellant nor the agency identified the date of
occurrence for this allegation, the record contains a statement dated
May 6, 1997, from appellant's sister concerning this incident. Based on
this statement, the Commission determined the approximate date of the
incident.