01991054
01-05-2000
Linda F. Kessler, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Linda F. Kessler v. Department of the Air Force
01991054
January 5, 2000
Linda F. Kessler, )
Complainant, )
)
v. ) Appeal No. 01991054
) Agency No. AEJ98004
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On November 23, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) 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 sex (female) and reprisal (prior EEO witness) when her
supervisor sexually and otherwise harassed her and did not consider her
for a promotion for approximately two months.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for untimely EEO contact, failure to state a claim, and
mootness.
BACKGROUND
Complainant gave a written statement in a sexual harassment investigation
surrounding her supervisor. Complainant alleged that her supervisor
received a copy of her statement and, on or about June 24, 1998,
questioned her about modifying the statement, which she chose not to do.
She alleged that shortly thereafter, her supervisor discriminated against
her in retaliation for her statement.
Complainant initiated EEO counseling on July 30, 1998,<2> and thereafter
filed a formal complaint on September 21, 1998, alleging discrimination
based on sex (female) and reprisal (prior EEO witness). In her complaint,
complainant specifically alleged:
on June 15, 1998, complainant's supervisor used an offensive term as
she helped to relocate the Civilian Personnel Flight Office;
on June 17, 1998, complainant's supervisor touched her on the shoulder
during a staff meeting and tasked her with a suspense;
on August 10, 1998, complainant's supervisor reached over and touched
her arm while they were in a discussion in a hallway;
on August 11, 1998, complainant's supervisor touched her arm while
giving her instructions for an assignment;
between July 30 and September 28, 1998, complainant was not given
promotion consideration for a vacant Personnel Management Specialist
position at the GS-09 level;
on July 23, 1998, complainant's supervisor corrected her incorrect
use of a term in a group setting;
on July 23, 1998, complainant's supervisor scolded her for alerting
him of an appointment;
on July 29, 1998, complainant's supervisor indicated that her work
on a continuity book would have a negative effect on her performance
appraisal;
on July 30, 1998, complainant had to request promotion consideration
for a GS-09 position;
on July 30, 1998, complainant's supervisor assigned her a due date to
complete her section's continuity book; and
on September 15, 1998, complainant's supervisor commented that he would
tell a blonde joke if he were not afraid to do so, which was directed
at complainant in light of her sexual harassment claim.<3>
In addition, complainant attached to her complaint a lengthy journal in
which she alleged a series of discriminatory acts occurred during the
period of June 15, 1998 through September 30, 1998.
On November 2, 1998, the agency issued a final decision dismissing
complainant's complaint. The agency dismissed Issues (1) and (2) for
untimely EEO contact, Issues (1) - (10) for failing to state a claim,
and Issues (5) and (9) for mootness.<4> This appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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.
Complainant reveals in her complaint that she contacted her agency's
EEO Office on July 30, 1998 to schedule an appointment to discuss her
allegations. She attended an EEO appointment on July 31, at which time
she received an Initial EEO Counselor Contact form. She returned the form
on August 3, 1998, the date the agency says complainant initiated contact.
The agency has not met its burden of proving the date complainant
initiated EEO contact. Herron v. USPS, EEOC Request No. 05971054
(Apr. 02, 1999). Thus, the Commission finds complainant initiated EEO
contact regarding Issues 1 and 2 on July 30, 1998, which makes each issue
timely brought to the attention of an EEO Counselor. Accordingly,
the agency's decision to dismiss Issues 1 and 2 is reversed.
Failure to State A Claim
EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 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; .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 attached a 54 page, daily journal to her formal complaint,
in which she alleged a series of discriminatory acts occurred from June
15, 1998 through September 30, 1998. Specifically, complainant alleged
that she was subjected to harassment, both sexual and otherwise, 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 complainant'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 complainant's allegations are viewed in the context
of her complaint of harassment, they state a claim and the agency's
dismissal of those allegations for failure to state a claim was improper.
Every allegation in complainant's complaint, including Issue 11 that
complainant specifically stated the agency did not address, should be
viewed in the context of her complaint of harassment.
Mootness
EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.107(a)(5)) provides
for the dismissal of a complaint, or portions thereof, when the issues
raised therein are moot. To determine whether the issues raised in
complainant's complaint are moot, the fact finder must ascertain whether
(1) it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Birdsong v. Department of the Navy, EEOC Request No. 05970026
(Apr. 9, 1998). When such circumstances exist, no relief is available
and no need for a determination of the rights of the parties is presented.
According to the agency, complainant was selected for promotion to a
GS-09, Personnel Management Specialist position on September 28, 1998.
In her complaint, complainant revealed that she notified her supervisor
of her interest in a GS-09 position and he told her that he wanted an
individual with experience but he would consider her once he checked
the clearinghouse for other possible candidates. Also according to
complainant, her supervisor indicated in a staff meeting that there
would be a new staffing, GS-09 position in the office by October 1, 1998.
Complainant filled the position of which she alleged her supervisor spoke.
Complainant did not allege compensatory damages so it was not addressed
herein. Accordingly, the agency's decision to dismiss Issues 5 and 9
for mootness is affirmed.
CONCLUSION
It is the decision of the Commission to REVERSE the agency's dismissal
of Issues 1 & 2 for untimely EEO contact and Issues 1 - 10 for failure to
state a claim and REMAND them and Issue 11 back to the agency for further
processing in accordance with this decision and applicable regulations;
and to AFFIRM the agency's dismissal of Issues 5 and 9 for mootness.
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:
Jan 5, 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
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.
2The agency refers to August 3, 1998 as the date of complainant's initial
EEO contact. However, in the daily journal attached to her complaint,
complainant indicated she contacted the EEO office on July 30, 1999
to schedule an appointment regarding her allegations, which exhibited
an intent to begin the EEO process. See Shields v. Department of
Transportation, EEOC Appeal No. 01941919 (Apr. 22, 1994).
3Complainant indicated in her appeal letter, dated November 18, 1998,
that the agency failed to address this issue which was specifically
presented in a letter dated October 8, 1998 clarifying her complaint.
4According to the agency, complainant was promoted from a GS-07 position
to a GS-09 position on September 28, 1998.