01A03975_r
06-11-2001
Julia M. Sanchez-Frasure, Complainant, v. Norman Y. Mineta, Secretary, Department of the Transportation, Agency.
Julia M. Sanchez-Frasure v. Department of Transportation
01A03975
June 11, 2001
.
Julia M. Sanchez-Frasure,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of the Transportation,
Agency.
Appeal No. 01A03975
Agency No. 2-00-2038
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal in
accordance with 29 C.F.R. �1614.405.
On November 3, 1999, complainant contacted the EEO office regarding
claims of discrimination based on race, color, national origin, and
in reprisal for prior protected activity. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, on November 16,
1999, complainant filed a formal complaint. The agency, in its decision,
framed the claims as follows:
Complainant was subjected to a hostile work environment when:
On October 13, 1999, complainant was notified of management's plans to
place her on an Opportunity to Demonstrate Performance (ODP) plan;
On October 7, 1999, management informed complainant that they were
preparing to give her an unsuccessful rating for her performance;
On September 30, 1999, management requested that complainant provide
them with a statement regarding an incident which allegedly occurred
between her and a co-worker on September 28, 1999;
On September 20, 1999, management called complainant to schedule a
meeting to discuss a �proposed disciplinary action� and issued her a
written notice on September 20, 1999, regarding the incident between
her and her team leader on August 27, 1999;
On August 31, 1999, complainant's supervisor threatened to place her
on Absent Without Leave (AWOL);
On August 27, 1999, complainant was confronted by a Team Leader in
a confrontational manner when she leaned across complainant's desk
gesticulating wildly at complainant with her arms while yelling at
complainant;
Complainant's work assignments as Management and Program Analyst were
changed and complainant was assigned low level administrative tasks;
Complainant was assigned a Team Leader who has earned a reputation
for aggression and malicious behavior towards her subordinates and
intimidation of her peers and superiors; and
Complainant requested information from ARX and they did not provide it
to her.
On April 6, 2000, the agency issued a decision dismissing the complaint.
The agency stated that complainant's claims were not egregious enough
to state a claim of a hostile work environment. Further, with respect
to claims 3, 6, 8 and 9, the agency determined that complainant failed
to state a claim. According to the agency, complainant failed to
show a direct harm which affected a term, condition or privilege of
her employment. Claims 1, 2, 4, and 5 were dismissed by the agency for
alleging that a proposal to take a personnel action is discriminatory.
Claim 7 was dismissed for untimely EEO Counselor contact. The agency
determined that complainant's assignments allegedly began to change in
mid-April 1999, more than forty-five days before complainant's Counselor
contact. Moreover, although complainant alleges a continuing violation,
the agency concluded that because all other claims had been dismissed,
the untimely claim (claim 7) �cannot be made timely.�
On appeal, complainant argues that the agency's decision contained
two inaccuracies. First, in claim 5 it was not her supervisor that
threatened to put her on AWOL, but rather a non-supervisory team leader.
Second, regarding the untimeliness of claim 7, complainant contends that
Person A �notified me in writing on September 29, 1999, to contact a
counselor within 45 days� and that she did so.
Claims 1, 2, 4 and 5
Pursuant to 29 C.F.R. � 1614.107(a)(5), an agency may dismiss a claim that
maintains a proposal to take a personnel action, or other preliminary step
to taking a personnel action, is discriminatory. The Commission has held
that proposed actions do not create a direct and personal deprivation
which would make a complainant an "aggrieved" employee within the
meaning of EEOC Regulations. See Charles v. Department of the Treasury,
EEOC Request No. 05910190 (February 25, 1991); Lewis v. Department of
the Interior, EEOC Request 05900095 (February 6, 1990). If, however, a
complainant alleges that the proposal or preliminary step was taken for
the purpose of harassing them for a prohibited reason, the agency may not
dismiss the issue as preliminary because, allegedly, the matter already
has adversely affected the complainant. See Henry v. United States Postal
Service, EEOC Request No. 05950229 (November 22, 1995); EEOC Management
Directive 110 (MD-110) (November 9, 1999), at 5-22, note 10.
Here, complainant claims she suffered discrimination when: she was
notified of management's plans to place her on an ODP plan (claim 1);
she learned that management was preparing to give her an unsuccessful
rating (claim 2); management called her to schedule a meeting to discuss a
�proposed disciplinary action� (claim 4); and her team leader threatened
to put her on AWOL (claim 5). We find that a fair reading of the claims
indicates that complainant believed the alleged actions were taken for
the purpose of harassing her. Therefore, the agency's dismissal of claims
(1), (2), (4) and (5) was improper.
Claims 3, 6, 8 and 9
The regulation set forth at 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 21, 1994).
Complainant claims she was discriminated against when: management asked
her to provide a statement regarding an incident with a co-worker (claim
3); a Team Leader yelled at her (claim 6); she was assigned to a Team
Leader with a reputation for aggression (claim 8); and ARX failed to
provide her with requested information (claim 9). While standing alone,
the events may fail to state a claim, however, as noted above, we find
that the alleged incidents are part of a broader claim of discriminatory
harassment. Complainant has alleged conduct in an ongoing pattern
of harassment, and therefore we find that claims 3, 6, 8, and 9 were
improperly dismissed.
Claim 7
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 claim 7 for untimely Counselor contact.
The Commission disagrees, In essence, complainant's complaint can be
construed as a claim of harassment, as discussed above. The Commission
has previously held that an agency should not ignore the �pattern�
aspect of a complainant's claims and define the issues in a piecemeal
manner where an analogous theme units the matters complained of. Meaney
v. Department of the Treasury, EEOC Request No. 05940169 (November 3,
1994). The record reflects that claims 1 - 6, and claims 8 and 9 address
a variety of issues relating to alleged harassment, i.e., threats to be
considered AWOL; confrontations with agency officials; and preparations
to give her an unsuccessful performance rating. We find that claim 7
further illustrates complainant's contention that she was subjected to
harassment and, therefore, is part of an alleged continuing violation.
See Drake v. Department of the Air Force, EEOC Request No. 05970689
(March 29, 1999).
In summary, the agency's decision dismissing claims 1 - 9 is REVERSED.
The complaint is REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 11, 2001
__________________
Date