01992311
11-21-2000
Lisa E. Kwong, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Lisa E. Kwong v. Department of the Army
01992311
November 21, 2000
.
Lisa E. Kwong,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01992311
Agency No. 9702H0050
DECISION
Upon review, the Commission finds that the complaint was improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(7).<1> The record
shows that on May 14, 1997, complainant filed a formal complaint
of discrimination. By final decision dated May 16, 1997, the agency
dismissed the complaint on the grounds of failure to state a claim,
untimely EEO counselor contact, mootness and failure to seek EEO
counseling. Complainant filed an appeal to the Commission concerning
the final agency decision (FAD). By decision dated August 18, 1998,
the Commission vacated the FAD and remanded the complaint for further
processing. The Commission noted that �prior to accepting or dismissing
the harassment complaint the agency shall contact complainant to clarify
the examples of harassment to determine whether any of the claims should
also be processed as non-harassment claims. Non-harassment claims
may be accepted or dismissed separate from the decision to accept or
dismiss the harassment complaint�. The Commission also ordered the
agency to determine �whether the complaint, as a whole, states a claim
of harassment, was timely raised with an EEO counselor, or is moot�.
Kwong v. Department of the Army, EEOC Appeal No. 01975048 (August 18,
1998).
By letter dated August 31, 1998, the agency asked complainant's
attorney to �clarify the examples of harassment in the complaint in
order to determine whether any of the claims should also be processed
as non-harassment claims�. The agency advised complainant's attorney
that the clarification �must be completed within 15 calendar days of
receipt of this notice�. Nevertheless, it failed to advise the attorney
that failure to comply with the 15-day requirement would result in the
dismissal of the complaint.
By letter dated September 11, 1998, complainant's attorney informed the
agency that �all of the incidents listed in the complaint are examples of
[complainant's] claim of a continuing violation of harassment. They are
not separate issues�.
By final decision dated January 5, 1999, the agency dismissed the
complaint for failure to cooperate after finding that complainant
�failed to provide the requested information to [the agency's] 31 August
1999 letter�. The agency further noted that its �original reasons for
dismissing [the] complaint have not changed�.
On appeal, complainant contends that �on September 11, 1998, the
undersigned counsel sent [to the agency] a letter via facsimile
stating that all of the incidents listed were examples of the harassment
allegation�. Complainant's counsel has included an affidavit in support
of the appeal.
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides that an agency may
dismiss a complaint where the agency has provided the complainant with
a written request to provide relevant information or otherwise proceed
with the complaint, and the complainant has failed to respond to the
request within 15 days of its receipt or the complainant's response does
not address the agency's request, provided that the request included
a notice of the proposed dismissal. In the present case, the agency's
request failed to notify complainant of the proposed dismissal of her
case if she failed to respond within the given 15 days. Furthermore,
the Commission had held that, as a general rule, an agency should not
dismiss a complaint when it has sufficient information on which to
base an adjudication. See Ross v. U.S. Postal Service, EEOC Request
No. 05900693 (August 17, 1990); Brinson v. U.S. Postal Service, EEOC
Request No. 05900193 (April 12, 1990). Furthermore, only in cases
where the complainant has engaged in delay or contumacious conduct and
the record is insufficient to permit adjudication has the Commission
allowed a complaint to be dismissed for failure to cooperate. See Raz
v. U.S. Postal Service, EEOC Request No. 05890177 (June 14, 1989); Delgado
v. U.S. Postal Service, EEOC Request No. 05900859 (October 25, 1990).
We note that complainant's attorney submits evidence on appeal indicating
that complainant did respond to the agency's request indicating that her
complaint was one of harassment and did not include non-harassment claims.
Consequently, we find that the agency's finding concerning complainant's
alleged failure to cooperate is not supported by the record.
We further find that the agency did not fully comply with the Commission's
August 18, 1998 decision which ordered the agency to determine �whether
the complaint as a whole states a claim of harassment, was timely
raised, or is moot�. Based upon the present record, we find that
there is sufficient evidence of record for a determination regarding
the timeliness and processability of the complaint. Accordingly, we
will address the propriety of the agency's dismissal of complainant's
harassment complaint on the grounds of timeliness, mootness, failure to
state a claim, and for not being raised during EEO counseling.
In her complaint, complainant alleged that she was subjected to
discrimination based on her race (Chinese) and sex (female) when her
supervisor engaged in various actions and conduct that constituted
harassment and created a hostile work environment. As remedial relief,
complainant requested, inter alia, an end to the harassment, compensatory
damages, and a transfer. In its final decision of May 16, 1997, the
agency identified separate incidents from complainant's complaint that
were labeled as allegations (a) - (p). These incidents involved remarks,
actions, and conduct of complainant's supervisor and other employees,
purportedly with her supervisor's knowledge, occurring from February
1996 through March 1997. The agency dismissed various �allegations� for
untimely EEO contact based on complainant's contact with an EEO Counselor
on February 19, 1997; two �allegations� as moot since complainant received
the overall rating of �Excellence� and corresponding Quality Step Increase
that she alleged that she was discriminatorily denied; three �allegations�
for failure to state a claim finding that complainant was not aggrieved
by the identified remarks; and one �allegation� regarding a remark made
in March 1997, for failure to raise the matter with the EEO Counselor.
Initially, we note that the agency failed to properly define the subject
complaint. Clearly, complainant alleged that the incidents identified
in her complaint were part of and constituted harassment, which created
a hostile work environment. The Commission has previously held that
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 matters complained of. Meaney v. Department of the
Treasury, EEOC Request No. 05940169 (November 3, 1994). By separating
the claim of harassment into separate �allegations,� the agency has
improperly fragmented the subject complaint.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
In the present case, complainant alleges that she was subjected to
harassment by her supervisor. The alleged harassment consisted of
various remarks, actions, and conduct of her supervisor occurring over
approximately a one year span of time. Considering that the identified
actions were all perpetrated by complainant's supervisor, and viewing
the identified remarks and comments in the light most favorable to
complainant, we find that complainant has stated a cognizable claim
under the EEOC Regulations. See Cervantes v. United States Postal
Service, EEOC Request No. 05930303 (November 12, 1993). Accordingly,
the agency's decision to dismiss two of the identified incidents of
alleged harassment for failure to state a claim was improper.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain issues 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 McGivern v. USPS, EEOC Request
No. 05901150 (December 28, 1990); Starr v. USPS, EEOC Appeal No. 01890412
(April 6, 1989).
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, 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).
As indicated above, complainant has alleged that the identified series of
remarks, actions, and conduct were perpetuated by her supervisor over a
one year period with the most recent occurring in March 1997. We find that
complainant has established a continuing violation. Since complainant
contacted an EEO Counselor on February 19, 1997, we find that complainant
timely raised her complaint of harassment with an EEO Counselor.
With regard to the moot determination, clearly since the complaint must
be viewed as a whole, providing some relief for two of the incidents
of harassment does not render the complaint moot and furthermore,
we note that complainant requests as part of her remedial relief that
she be awarded compensatory damages. Should complainant prevail in her
complaint, the possibility of an award of compensatory damages exists,
and her issues are not therefore moot. See Glover v. USPS, EEOC Appeal
No. 01930696 (December 9, 1993).
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states, in pertinent part,
that an agency shall dismiss a complaint or portion thereof 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. A later allegation or complaint is
"like or related" to the original complaint if the later allegation 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. USPS, EEOC Request No. 05940702 (May
30, 1995); Calhoun v. USPS, EEOC Request No. 05891068 (March 8, 1990).
The incident of alleged harassment occurring in March 1997, which the
agency contends was not raised with an EEO Counselor, is clearly like
or related to the incidents for which complainant did undergo counseling.
Accordingly, the final agency decision is hereby REVERSED. The complaint
as defined herein is hereby REMANDED for further processing consistent
with this decision and applicable regulations.
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 (K0900)
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)(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 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
November 21, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.