Karen D. Aldridge, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
01991823_r (E.E.O.C. Nov. 4, 1999)

01991823_r

11-04-1999

Karen D. Aldridge, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Karen D. Aldridge, )

Appellant, )

)

v. ) Appeal No. 01991823

) Agency No. 98-04I-0080

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

On December 24, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated November 25, 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.

The agency characterized appellant's complaint as alleging that she was

subjected to discrimination on the bases of race (African-American),

color (Black), national origin (African), sex (female), and in reprisal

for prior EEO activity when:

Appellant received a Marginal Performance Evaluation for the rating period

November 1, 1996 to October 31, 1997 based on input allegedly provided

by her previous supervisor. Because of this marginal rating, appellant

was held back from promotional opportunities, and her opportunity to

advance as an African-American female was damaged.

Appellant was assigned complex work projects by her supervisor (S1) which

required intensive review and research of a regulatory and statutory

nature, and S1 went directly to appellant's team leader to discuss

work-related issues instead of talking to appellant directly.

In February 1998, S1 remarked, �I don't have time for that ...� during

a Black History Month Program to the agency's Black Employment Program

Manager, showing a disrespect for the Black race.

On January 18, 1998, S1 stated, �[appellant] need[ed] to go to training

because [her] oral and written communication is not good ...�

S1 changed an Architecture and Engineering training scheduled for February

1998 without notifying appellant.

On or about September 7, 1997, appellant requested and was approved

leave by her team leader for October 7, and 8, 1997. S1 instructed

her secretary to charge appellant nine hours of leave for each day,

even though appellant had requested and was purportedly approved to

switch her eight-hour days to the days for which she requested leave in

order to use only sixteen hours of leave, rather than eighteen hours.

Appellant's request for overtime was denied in December 1997.

In October 1997, S1 initiated a �Project Update� to be completed as a

weekly status report for the Contracting Division, which was overbearing,

impossible to complete, and tended to create additional work.

In October 1997, S1 brought vacancy job announcements which she copied

from the Internet, which appellant believed was an indication that S1

wanted her to leave the District.

In October 1997, S1 remarked to a computer specialist she had worked on

appellant's computer, �Is she happy Tony?�

(k) In February 1998, S1 stated to appellant, �... so now the fire

alarm is discriminatory to you.�<1>

(m) In April 1998, in a meeting for the contracting staff, S1 attempted

�to cause friction between employees,� and that S1 �had problems

initiating and completing support forms for employees.�

(n) Despite repeated requests, S1 refused to meet with appellant and

her representative.

The Commission notes that appellant alleged that the foregoing incidents

constituted harassment which created a hostile work environment.

The agency accepted allegations (a) through (e) in a separate letter dated

November 25, 1998, dismissed allegations (f), (g), (h), and (i) pursuant

to EEOC Regulation 29 C.F.R. �1614.107(b), for failure to initiate contact

with an EEO Counselor in a timely manner, and dismissed allegations (k),

(m), and (n) pursuant to 29 C.F.R. �1614.107(a), for failure to state

a claim. Specifically, the agency determined that because appellant's

February 20, 1998 initial EEO Counselor contact occurred more than

forty-five (45) days from the dates of the alleged discrimination

identified in allegations (f), (g), (h), and (i), it was untimely.

Additionally, the agency concluded that appellant was not aggrieved

under the EEOC regulations for allegations (k), (m), and (n), because

she failed to show how those incidents caused harm with respect to the

terms, conditions or privileges of her employment.

On appeal, appellant contends that she requested leave and overtime on a

number of occasions and that the agency erred in identifying only those

which were mentioned in allegation (f). Similarly, appellant asserts that

the weekly status reports continue to be required by S1, and, therefore,

that her EEO Counselor contact was timely with regard to allegation

(g). Appellant further contends that all of the otherwise untimely

allegations should be considered under the continuing violation theory.

Finally, appellant contends that all of the allegations contributed

to an alleged hostile work environment and that the agency, therefore,

should have examined them in their entirety.

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 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).

It is well-settled that 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."

Williams v. Department of Defense, EEOC Request No. 05920506 (August

25, 1992). Moreover, where, as here, a complainant alleges recurring

incidents of harassment, "an agency is obligated to initiate an inquiry

into whether any allegations untimely raised fall within the ambit of

the continuing violation theory." Guy v. Department of Energy, EEOC

Request No. 05930703 (December 16, 1993) (citing Williams). As the

Commission further held in Williams, where an agency's final decision

fails to address the issue of continuing violation, the complaint "must be

remanded for consideration of this question and issuance of a new final

agency decision making a specific determination under the continuing

violation theory." Accordingly, here, where appellant alleged that the

incidents identified in allegations (f), (g), (h), and (i) were part of

a continuing violation, the agency must address this issue on remand.

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 her complaint, appellant alleged that a series of events constituted

harassment which created a hostile work environment. Instead of

treating these events as incidents of the claim of harassment, however,

the agency looked at them individually. Thus, we find that the agency

acted improperly by treating matters raised in appellant's complaint

in a piecemeal manner. See Meaney v. Department of the Treasury,

EEOC Request No. 05940169 (November 3, 1994) (an agency should not

ignore the "pattern aspect" of a complainant's allegations and define

the issues in a piecemeal manner where an analogous theme unites the

matter complained of). Consequently, when appellant's allegations are

viewed in the context of appellant's complaint of harassment, they state

a claim and the agency's dismissal of those allegations for failure to

state a claim was improper.

However, the Commission finds that allegation (g) is a generalized

grievance and, therefore, that it fails to state a claim. Appellant did

not allege that she was the only employee required to prepare the weekly

status reports, and, therefore failed to show how she was treated less

favorably than other, similarly-situated employees. Appellant cannot

pursue a generalized grievance that members of one protected group

are afforded benefits not offered to other protected groups, unless he

further alleges some specific injury to him as a result of the alleged

discriminatory practice. See Warth v. Seldin, 422 U.S. 490 (1975);

Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508

(September 11, 1997) (allegation that nurse practitioners in one unit

received more favorable treatment than nurse practitioners in other units

was a generalized grievance); Rodriguez v. Department of the Treasury,

EEOC Appeal No. 01970736 (August 29, 1997) (allegation that there was

an imbalance in favoring of African-Americans, against Hispanics, in

development and promotion opportunities was a generalized grievance

purportedly shared by all Hispanic co-workers and therefore failed to

state a claim).

Accordingly, the agency's decision to dismiss allegation (g) is

AFFIRMED for the reasons set forth herein. The agency's decision to

dismiss allegations (f), (h), (i), (k), (m), and (n) is hereby REVERSED.

Those allegations 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:

Determine whether allegations (f), (h), and (i) are part of a continuing

violation along with the timely allegations. Thereafter, the agency

shall decide whether to process allegations (f), (h), and (i).

A copy of the notice of processing and/or determination not to process

allegations (f), (h), and (i) must be sent to the Compliance Officer as

referenced below.

Process the remanded allegations (k), (m), and (n) in accordance with 29

C.F.R. �1614.108. The agency shall acknowledge to the appellant that

it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. 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 the 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.

A copy of the agency's letter of acknowledgment 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. �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:

November 4, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

1The Commission notes that the agency did not use the letters (j)

and (l) in delineating appellant's allegations. For consistency,

the Commission will refer to the allegations as identified by

the agency.