01985882
03-29-2000
Louise Burton, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Louise Burton v. Department of the Army
01985882
March 29, 2000
Louise Burton, )
Complainant, )
)
v. ) Appeal No. 01985882
Louis Caldera, ) Agency No. BUDEFO9803I0130
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On July 24, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on June 27, 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. <1> In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of race (African American), color (black), age (DOB 10/16/42),
sex (female), and in reprisal for prior EEO activity when:
Complainant's current supervisor (S2) attempted to "discredit
complainant" and to "set the budget section up for failure" during a
staff assistance visit conducted on January 13, 1998;
Complainant's previous supervisor (S1) informed S2 of complainant's
previous EEO complaint which subjected complainant to a hostile work
environment;
Complainant received a counseling statement for her involvement in an
argument while the other party was not counseled because of her status
as the commander's secretary;
Complainant was not allowed to stay late to complete tasks without
pre-arranging her schedule change with her supervisor; also complainant
was not allowed to stay for credit time;
S2 gave complainant a Performance Appraisal for the period ending
January 31, 1997, that did not accurately reflect complainant's
performance;
Complainant did not receive a Performance Appraisal for the period
ending January 31, 1998;
S2 sent complainant notes or e-mail rather than talk to her and when
S2 does talk to complainant it is almost always not favorable;
S2 harassed and intimidated complainant; specifically on October 8,
1997, S2 denied complainant's leave and "rubbed it in"; S2 also harassed
complainant about MOP;
S2 told complainant to cancel her dental appointment and reschedule it;
S2 "redistributed tasks and switched employees from one position to
the other because of her like or dislike or favoritism towards persons";
Complainant was not notified of a sporting event while complainant's
assistant was put on the list, and complainant was not allowed to
participate in a wellness program because the mission of her position
did not permit her to go;
S2 has been a party to numerous "incidents, acts, etc." (including
interference with complainant's selection of a supply technician and
S2's refusal to talk to complainant)
The agency dismissed issues (1), (2), (3), (4), (6), (7), (8), (9),
(10), (11), and (12) pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)), on the
grounds that complainant failed to state a claim. In addition, the agency
dismissed issues (5) and (12) on the grounds of untimely EEO Counselor
contact. 29 C.F.R. � 1614.105(a)(1). Finally, the agency dismissed
issues (9), (10), (11), and (12) on the grounds that complainant had
not previously brought this issue to the attention of an EEO Counselor.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited
as 29 C.F.R. � 1614.107(a)(2)).
On appeal, complainant claims that she has not discussed her allegations
of discrimination with an EEO Counselor and has not received any
investigative files. Furthermore, complainant states that her formal
complaint was filed with the Lemoore Naval Air Station and that therefore
no decision should have been rendered by Headquarters, United States
Military Entrance Processing Command (HQUSMEPCOM). In addition,
complainant requests a hearing before an Administrative Judge (AJ).
The record includes a copy of the counselor's report dated May 13,
1998, indicating that complainant's initial EEO contact was on February
17, 1998. The report lists pertinent documents which the counselor
considered in writing her report, including complainant's February 25,
1998 memo and complainant's written allegations of discrimination.
The February 25, 1998 memo clearly states that complainant is filing
an EEO complaint alleging harassment and discrimination based on her
race, sex, age, and in reprisal for prior EEO activity. In addition,
in her formal EEO complaint, complainant lists thirteen allegations of
harassment and discrimination.
EEOC Regulation 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 22, 1994).
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).
We find that complainant characterized her complaint as one of harassment
in connection with the terms and conditions of her employment.
In accepting the complaint, however, the agency did not frame the
issue as a terms-and-conditions claim. Instead, the agency treated
each incident as if it were a separate allegation of discrimination.
When confronted with claims like this, the agency cannot ignore the
pattern aspect of these claims and define the issues in a piecemeal
manner, as it appears to have done. Ferguson v. Department of Justice,
EEOC Request No. 05970792 (March 30, 1999). Therefore, we find that the
agency improperly dismissed issues (1)-(4) and (6)-(12) for failure to
state a claim. The agency is directed to process complainant's complaint
as a single claim of harassment, and to treat each incident described
in that complaint as evidence that either supports or refutes her claim.
The agency also dismissed issues (5) and (12) on the grounds of untimely
EEO Counselor contact.
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.
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 McGivern v. USPS, EEOC Request
No. 05901150 (December 28, 1990); Starr v. USPS, EEOC Appeal No. 01890412
(April 6, 1989).
We note that complainant received the performance appraisal mentioned in
issue (5) in January 1997, however, she did not contact an EEO Counselor
until February 17, 1998. We also note that the various incidents in
issue (12) do not contain specific dates indicating when they occurred.
In her complaint, however, complainant alleges that she was subjected
to continual harassment based on her race, color, age, sex, and in
reprisal for prior EEO activity. Complainant claims that the same
supervisor was involved in all of the alleged incidents. In addition,
we find that issues (5) and (12) clearly relate to the other timely
incidents since they all involve allegations of harassment. Therefore,
we conclude that complainant established a continuing violation and
find that the agency's dismissal of issues (5) and (12) for untimely
counselor contact was improper.
The agency also dismissed issues (9), (10), (11), and (12) for failure
to raise these matters with the EEO Counselor. 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).
We find that in view of complainant's claim of hostile work environment
harassment, it appears that issues (9) through (12) could be considered
additional incidents of the alleged harassment and, therefore, like or
related to matters on which complainant received counseling. Therefore,
we find that the agency's dismissal of issues (9) through (12) pursuant
to 29 C.F.R. � 1614.107(a)(2) was improper.
Accordingly, the agency's dismissal of complainant's complaint was
improper and is REVERSED, and the complaint, as defined herein, is
REMANDED for further processing.
ORDER
The agency is ORDERED to process the remanded harassment complaint, as
defined above, in accordance with 64 Fed. Reg. 37, 644, 27, 656-57 (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 complaint 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 reference 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 (M0300)
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); 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 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 (R1199)
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:
March 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.