01993641
04-21-2000
Helen Rhinesmith, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Helen Rhinesmith, )
Complainant, )
)
v. ) Appeal No. 01993641
) Agency No. 99-1049
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
____________________________________)
DECISION
INTRODUCTION
On April 03, 1999, complainant filed a timely appeal with the Equal
Employment Opportunity Commission from a final agency decision
concerning her complaint of unlawful employment discrimination on
the bases of reprisal (prior EEO activity) and physical disability
(orthostatic syndrome) in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405). For the following reasons,
the Commission AFFIRMS in part, and REVERSES and REMANDS in part.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
complainant's formal EEO complaint for failure to state a claim, untimely
EEO counselor, and stating the same claim that is pending before or has
been decided by the agency or Commission.
BACKGROUND
Complainant, employed by the agency as a Tax Examiner at the time
of the alleged discriminatory events, filed a formal EEO complaint
on November 07, 1998, alleging that she was subjected to harassment
on the above-referenced bases when (1) on August 3, 1996, she was
furloughed while on workers' compensation; (2) on August 27, 1996,
management required her to submit extensive medical documentation;
(3) she was denied advanced sick leave on August 27 and 28, 1998; (4)
she was denied teaching assignments; (5) she was denied an upgrade; and
(6) she was denied conversion to permanent employment status.
In its final decision, the agency dismissed the first issue for untimely
EEO contact and stating the same claim that is already pending before
or has been decided by the agency or Commission. The second issue was
also dismissed for stating the same claim that is already pending or has
been decided. The third issue was dismissed for failure to state a claim.
The last three issues were referred to the EEO office because complainant
had not brought them to the attention of an EEO counselor.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
Complaints of discrimination should be brought to the attention of an
EEO 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. EEOC
Regulation 29 C.F.R. � 1614.105(a)(1). The Commission has held, however,
that the time requirements for initiating EEO counseling could be waived
as to certain claims 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. United States 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, complainant 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 complainant.
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 complainant
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).
After a careful review of the file, the information contained therein
reveals that the alleged discriminatory event in the first issue
occurred on August 3, 1996 and complainant first sought EEO counseling
on September 2, 1998. Because complainant sought EEO counseling well
beyond the 45 day time period and the other issues raised are not related
to the alleged discriminatory event at issue here, thus rendering the
continuing violation doctrine inapplicable, we find that the agency
appropriately dismissed this issue as violative of the time limit in 29
C.F.R. �1614.105(a)(1).<2>
Stating a Claim Pending or Already Decided
The agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited
as 29 C.F.R. � 1614.107(a)(1)). The agency contends that the second
issue was the subject of a previous complaint. Materials contained
in the file confirm this contention. For that reason, the Commission
finds that this issue was appropriately dismissed for stating a pending
or already decided claim.
Failure to State a Claim
An agency shall dismiss a complaint that fails to state a claim.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited
as 29 C.F.R. � 1614.107(a)(1)). 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).
The agency contends that regarding the third issue (i.e., management
denied complainant's advanced sick leave request for August 27th and 28th,
1998), complainant failed to state a claim. That contention is based on
the fact that, although the request was initially denied, it was approved
on September 8, 1998. Information contained in the file confirms that
the request was eventually approved. In her formal complaint, however,
complainant contends that the agency has a pattern of initially denying
her advanced leave requests, then approving them after the filing of
an EEO complaint. This behavior, if true, is harassing in nature and
therefore states a claim. For that reason, we find that the third issue
should not have been dismissed.
Raising a Matter Not Brought to the Attention of an EEO Counselor
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.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited
as 29 C.F.R. � 1614.107(a)(2)). 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).
In this case, the agency referred issues (4), (5), and (6) to an EEO
counselor because complainant had not raised them before an EEO counselor.
The counselor's report confirms that those issues were not raised before
an EEO counselor. Because they were not raised and are not like or
related to those that were, we find that the agency's decision to refer
them to an EEO counselor was appropriate.
CONCLUSION
Based on the foregoing, the Commission holds that the agency's decision
to dismiss issues (1), (2), and (4) - (6) was proper and is, therefore,
AFFIRMED. Conversely, the decision to dismiss issue (3) was not proper
and is, therefore, REVERSED and REMANDED.
ORDER (E0400)
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 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 (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 (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
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:
April 21, 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.
2 This issue was also dismissed for stating a claim already pending
before or decided by the agency or Commission. But because this issue
was appropriately dismissed for untimely EEO contact, we will not address
whether it is pending before or already decided by the agency or the
Commission.