01984609
12-07-1999
Lisa M. Honor, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency,) Agency.
Lisa M. Honor, )
Appellant, )
)
v. ) Appeal No. 01984609
) Agency No. 97-0093-R9
Carol M. Browner, )
Administrator, )
Environmental Protection Agency,)
Agency. )
)
DECISION
The Commission finds that the agency's final decision dated April 3, 1998,
which dismissed a portion of appellant's complaint, on the grounds of
untimely EEO counselor contact and failure to state a claim, is improper,
in part, pursuant to the provisions of 29 C.F.R.�1614.107(a) and (b).
The EEO Counselor's Report shows that appellant sought EEO counseling on
February 20, 1997, alleging that she had been discriminated against on the
bases of race (African American) and reprisal for prior EEO activity.<1>
Appellant subsequently filed a formal complaint of discrimination alleging
that she had been discriminated against on the bases of race and reprisal
when: (1) in February 1996, her supervisor promised to promote appellant
after an agency wide freeze was lifted. The lift was lifted on May 6,
1996. On July 23 and August 13, 1996, appellant again questioned her
supervisor about her promotion. Appellant did not receive the promotion;
(2) on July 10, 1996, appellant's supervisor told her that she was
shocked appellant had won the �Water's Edge Award�; (3) on July 23, 1996,
appellant requested annual leave for July 29-30, 1996, but her supervisor
denied her request saying that appellant was needed at the office; (4)
in August 1996, appellant spoke with her supervisor about the �Water's
Edge Award� and career development. This upset her supervisor who
subsequently did not speak to her for several days; (5) in August 1996,
appellant's supervisor assigned her work assignments that other coworkers
would not do; (6) during the Summer/Fall of 1996, appellant completed a
regional placement survey and indicated her interest in jobs in another
division. She heard rumors that her supervisor was upset with her for
indicating an interest in changing jobs; (7) on September 27, 1996,
appellant's supervisor wrote a memorandum on �Performance Highlights�
which identified deficiencies in her performance. Appellant believed
that her supervisor resented her time off authorized under the �Water's
Edge Award�; (8) on September 27, 1996, appellant was reprimanded for a
backlog of filing because filing had not been completed since July 1996;
(9) on December 6, 1996, appellant injured her ankle while on the job.
Her supervisor questioned her �Kaiser medical slip� and assigned
her duties which included �xeroxing� even though it was difficult to
accomplish these tasks while on crutches; (10)on February 6, 1997, during
a discussion about her FY 1996 performance rating, appellant's supervisor
threatened her by stating �if you file an EEO complaint, there will be
no communication between you and me at all�; (11) on February 13, 1997,
appellant received an unfair performance rating that was not based on
merit; (12) on February 26, 1997, appellant spoke to her supervisor about
approving compensation for working her lunch hour and staying late to
complete work assignments. Appellant received no monetary compensation;
(13) on April 14, 1997, appellant's supervisor hovered over her and stared
at her while appellant was working at her desk. The supervisor also
scrutinized documents placed on appellant's desk; (14) on April 21, 1997,
the EEO Counselor notified appellant's supervisor that she had sought
EEO counseling. Four days later appellant was verbally notified by the
Human Resources office that she would be reassigned from her position of
GS-7 Budget Assistant to the position of a GS-7 secretary. Appellant
felt the reassignment represented retaliation and punishment; and,
(15) on April 22, 1997, during a budget meeting a male coworker harassed
appellant in front of others by grabbing a piece of paper from her hand
and commenting that appellant had a bad attitude. Appellant felt that
he was disrespecting her and informed her supervisor about the behavior.
The supervisor took no action to put a stop to the coworker's harassment.
After reviewing appellant's formal complaint and the final agency
decision (FAD) we have found that the FAD included and addressed most
of the allegations raised by appellant in her formal complaint of
discrimination. The agency, however, failed to address the following
seven (7) allegations: (a) the white male coworker continuously harassed
her, cursed her, falsified information about appellant and engaged in
undue oversight of her work; (b) in August 1996, appellant's supervisor
assigned budget work to appellant after a white male coworker refused
to continue helping appellant. After appellant complained that it
was too much work for only one person her supervisor told her that a
former employee used to do all the work. Appellant then asked for a
comparable grade to the former employee and the supervisor said that
�it was in the back of her head�; (c) management failed to respond to
appellant's requests that the hostile environment against her cease.
On December 4, 1996, appellant wrote a memorandum outlining her concerns
about the �Performance Highlights� memorandum issued by her supervisor
in September 1996; (d) during a January 17, 1997 meeting appellant asked
for accommodation to attend a stress group meeting and was told to use
her own leave balance. In January 1997, appellant informed the Division
Director that she needed to attend the stress group meetings as a result
of the hostile work environment; (e) in February 1997, appellant's
supervisor developed new performance standards for appellant's FY
1997 performance appraisal. Appellant informed her supervisor that
the standards were unreasonable and impossible for her to achieve;
(f) appellant's supervisor told appellant that she (the supervisor)
was getting out her �Liz Claiborne� suits because appellant's clothes
made everybody think that appellant was the supervisor; and, (g) on an
April 14, 1997 memorandum, appellant raised her objection to her hostile
work environment.
The agency issued a final decision<2> and accepted allegations (10),
(11), (12), (14) and (15) for investigation. Allegations (1), (2),
(3), (4), (5), (6), (7), (8) and (9) were dismissed on the grounds of
untimely EEO counselor contact. Allegations (2), (4) (5), (6) and (13)
were dismissed on the basis of failure to state a claim.
On appeal, appellant contends that the agency improperly defined the
allegations of her formal complaint. Appellant further contends that
the agency failed to address her continuous harassment claim.
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 McGovern
v. United States Postal Service, EEOC Request No. 05901150 (December 28,
1990); Starr v. United States Postal Service, 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, 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).
In determining whether a continuing violation exists, the Commission
has relied on the decision in Berry, wherein the court set forth three
relevant factors: the first is subject matter. Do the alleged acts
involve the same type of discrimination, tending to connect them in
a continuing violation? The second is frequency. Are the alleged
acts recurring (e.g., a biweekly paycheck) or more in the nature of
an isolated work assignment or employment decision? The third factor,
perhaps of most importance, is degree of permanence. Does the act have
the degree of permanence which should trigger an employee's awareness
of and duty to assert his or her rights, or which should indicate to
the employee that the continued existence of the adverse consequences
of the act is to be expected without being dependent on a continuing
intent to discriminate? Berry, 715 F.2d at 981. Incidents that are
sufficiently distinct to trigger the running of the limitations period do
not constitute continuing violations. See, e.g., Miller v. Shawmut Bank,
726 F. Supp. 337, 341 (D. Mass. 1989); Cogen v. Milton Bradley Co./Hasbro
Inc., 449 Empl. Prac. Dec. (CCH) s38,894 (D. Mass. 1989). In Cogen,
the court rejected the plaintiff's attempt to apply the continuing
violation theory to, among other allegations, an assignment issue.
The court stated that "discrete acts of discrimination taking place
at identifiable points in time" are not continuing violations for the
purpose of extending the limitations period. Id. at 58,757; see also
Edinboro v. Department of Health & Human Services, 704 F. Supp. 364,
367 (S.D. N.Y. 1988) (demotion not a continuing violation).
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. See
Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921
F.2d 396 (1st Cir. 1990) (plaintiff who believed he had been subjected
to discrimination had an obligation to file promptly with the EEOC or
lose his claim, as distinguished from the situation where a plaintiff
is unable to appreciate that he is being discriminated against until he
has lived through a series of acts and is thereby able to perceive the
overall discriminatory pattern).
A review of allegations (1) - (9) persuades the Commission that they
were properly dismissed by the agency on the grounds of untimely EEO
counselor contact. The record shows that the incidents raised in said
allegations occurred during the period of time between February 1996,
through December 6, 1996. The record further shows that on December 4,
1996, appellant wrote a memorandum to the Division Director in which
she raised concerns about the hostile work environment she was forced
to endure. Notwithstanding appellant's obvious concern about the alleged
hostile work environment throughout 1996, she did not contact an EEO
counselor until February 20, 1997. The Commission has specifically held
that internal efforts to resolve an agency's adverse action do not toll
the running of the time limit to contact an EEO counselor. See Hosford
v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9,
1989). Based on the foregoing, we conclude that appellant suspected or
should have suspected that the agency was engaging in unlawful employment
discrimination during 1996, and should have sought EEO counseling within
45 days of her suspicions. Accordingly, allegations (1) - (9)<3> were
properly dismissed by the agency pursuant to 29 C.F.R. �1614.107(b).
Allegation (13) was dismissed on the basis of failure to state a claim.
In allegation (13) appellant claimed that her supervisor hovered over
her, scrutinized documents placed on her desk and stared at her. The
Commission has consistently held that a remark or comment unaccompanied
by any concrete effect does not render a complainant aggrieved.
Fuller v. USPS, EEOC Request No. 05910324 (May 2, 1991). Moreover, the
incidents in question are insufficient to support a claim of harassment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). Accordingly, allegation (13) was properly dismissed on the
grounds of failure to state a claim.
Finally, we need to address the seven allegations raised by appellant in
her formal complaint of discrimination which were not included in the FAD.
These allegations are: (a) the white male coworker continuously harassed
her, cursed her, falsified information about appellant and engaged in
undue oversight of her work; (b) in August 1996, appellant's supervisor
assigned budget work to appellant after a white male coworker refused
to continue helping appellant. After appellant complained that it
was too much work for only one person her supervisor told her that a
former employee used to do all the work. Appellant then asked for a
comparable grade to the former employee and the supervisor said that
�it was in the back of her head�; (c) management failed to respond to
appellant's requests that the hostile environment against her cease.
On December 4, 1996, appellant wrote a memorandum outlining her concerns
about the �Performance Highlights� memorandum issued by her supervisor
in September 1996; (d) during a January 17, 1997 meeting appellant asked
for accommodation to attend a stress group meeting and was told to use
her own leave balance. In January 1997, appellant informed the Division
Director that she needed to attend the stress group meetings as a result
of the hostile work environment; (e) in February 1997, appellant's
supervisor developed new performance standards for appellant's FY
1997 performance appraisal. Appellant informed her supervisor that
the standards were unreasonable and impossible for her to achieve;
(f) appellant's supervisor told appellant that she (the supervisor)
was getting out her �Liz Claiborne� suits because of appellant's
clothes everybody thought that appellant was the supervisor; and, (g)
on an April 14, 1997 memorandum, appellant raised her objection to her
hostile work environment.
A review of the record shows that the incidents raised in allegations
(a), (b) and (c) occurred throughout 1996. Nevertheless, appellant did
not seek EEO counseling until February 20, 1997. We would generally
provide an opportunity to the agency to make a determination concerning
the timeliness of appellant's initial EEO counselor contact concerning
these allegations. However, based on the record, we find that the
agency has rejected appellant's continuing violation claim concerning
the other allegations of her formal complaint. Based on the foregoing,
we find that appellant's initial EEO counselor contact on February 20,
1997, was untimely regarding allegations (a), (b) and (c).
In allegation (d) appellant claimed that in January 1997, as a consequence
of her hostile work environment, she requested accommodation to attend a
stress group meeting. Appellant further alleged that: her request was
denied; she was told to use her leave balance to attend the meetings;
and, she once again informed the Division Director that her hostile
work environment was responsible for her need to attend the meetings.
In allegation (e) appellant claimed that the performance standards
developed by her supervisor for FY 1997, were unreasonable and impossible
to achieve. In allegation (g) appellant alleged that in April 14,
1997, she once again complained about her hostile work environment.
We find that appellant's initial EEO counselor contact concerning these
allegations was timely. Moreover, these allegations raise issues that
are sufficient to state a claim under EEOC Regulations.
Finally, we find that allegation (f) (appellant's supervisor comment
concerning appellant's clothes) fails to state a claim under EEOC
Regulations. A remark or comment unaccompanied by any concrete effect
does not render a complainant aggrieved. Fuller.
Accordingly, the final agency's decision dismissing allegations (1) -
(9), (13), (a) - (c) and (f) is AFFIRMED. Allegations (d), (e) and (g)
are REMANDED for further processing in accordance with this decision
and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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.
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:
Dec. 7, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 A review of the record shows that appellant's allegations required nine
(9) pages of the EEO Counselor's Report. In order to avoid repetition
of such an extensive narrative, we will summarize her allegations in
our next paragraph only.
2 To avoid confusion we will follow the numbers used by the agency in
its final decision to identify the allegations.
3 Based on our finding, we need not address the agency's alternate basis
for dismissing allegations (2), (4), (5) and (6).