Margery Burfield, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMar 16, 2000
01986743 (E.E.O.C. Mar. 16, 2000)

01986743

03-16-2000

Margery Burfield, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Margery Burfield v. Department of the Interior

01986743

March 16, 2000

Margery Burfield, )

Complainant, )

)

v. )

) Appeal No. 01986743

Bruce Babbitt, ) Agency No. FWS-98-015R2

Secretary, )

Department of the Interior, )

Agency. )

____________________________________)

DECISION

On September 1, 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. and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq.<1> The Commission accepts the appeal in accordance

with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �

1614.405).

Complainant contacted the EEO office on November 18, 1997, regarding

claims of discrimination based on sex, age, and reprisal. Informal

efforts to resolve complainant's concerns were unsuccessful. Accordingly,

on April 8, 1998, complainant filed a formal complaint.

The agency framed the claims as follows:

In 1996, complainant requested that her position be reclassified and

after promising to do so, her Refuge Manager did not submit the required

paperwork to initiate the action;

In April 1996, a $950.00 award was given to a male colleague for his

work on the network telephone system, in which she allegedly did most

of the work;

On February 26, 1997, complainant was forcibly restrained, threatened, and

intimidated when she reported an illegal contract to CGS;

On May 20, 1997, complainant was denied training when a male was chosen

to replace her;

On November 6, 1997, complainant received her annual performance

evaluation with a rating of "not achieved" in all 5 of the critical

elements; and

On November 12, 1997, complainant received an e-mail message regarding

"Early Retirement" from the Refuge Manager.

The agency issued a FAD dismissing the complaint for untimely counselor

contact, mootness, and failure to state a claim. Specifically, the

agency determined that complainant's November 18, 1997 counselor contact

for claims 1, 2, 3, and 4 was beyond the forty-five day time limitation.

Further, the agency noted that claims 1 and 2 were never raised with a

counselor as required. Claim 5 was dismissed as moot. The FAD indicated

that on April 8, 1998 the agency changed complainant's 1997 performance

evaluation to reflect a rating of "Achieved" in all critical elements ,and

complainant had not sought compensatory damages. The FAD also stated that

claim 6 failed to state a claim. The agency determined that complainant

did not demonstrate how the e-mail message regarding "Early Retirement"

resulted in a harm to a term, condition, or privilege of her employment.

On appeal, complainant argues that claims 2 and 3 were timely raised,

as the agency cited incorrect dates. According to complainant, claim 2

occurred in April 1997 (instead of April 1996) and claim 3 occurred on

February 26, 1998 (instead of 1997). Further, complainant contends that

claims 1 and 4 are part of a continuous pattern of discrimination and

therefore should not have been dismissed for untimely counselor contact.

With respect to claim 5, complainant argues that she has not received

an adequate remedy, noting that although her evaluation was changed

she had to file the instant complaint to achieve the correction.

Complainant also contends that claim 6 (e-mail message) is part of a

series of discriminatory acts committed by her supervisor.

In response, the agency reiterates the conclusions made in the FAD and

indicates that EEO posters describing the forty-five day time limitation

are on display. Further, the agency reviewed the claims to ascertain

whether they were part of a continuing violation, and determined that

there were no timely allegations, thereby preventing use of the theory.

Claims 1, 2, 3, and 4

Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter

referred to as 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.

In the instant case, complainant argues that claim 2 occurred in April

1997, rather than in April 1996. However, even if the alleged event

occurred one year later, complainant's contact on November 18, 1997 is

still untimely. Accordingly, the dismissal of claim 2 was proper and

is AFFIRMED.

Similarly, complainant argues that the date for claim 3 was also

inaccurately stated by the agency. According to complainant, claim 3

occurred on February 26, 1998 rather than in 1997. A review of the record

reveals, however, that on her formal complaint the complainant stated that

the alleged incident occurred in 1997. Further, the Counselor's Report

does not reflect a 1998 incident. If complainant is referring to a new

claim, she is advised to seek counseling at the EEO office. Therefore,

we find that the agency's dismissal of claim 3 was proper and is AFFIRMED.

The Commission has held that the time requirements for initiating EEO

counseling could be waived as to certain claims 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. United States

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, 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).

With regard to claims 1 - 4, there is no timely raised claim which

purportedly occurred within forty-five days of complainant's initial EEO

Counselor contact in November 1997. The Commission therefore determines

that these claims cannot be construed as part of a continuing violation.

Moreover, we find that complainant has not presented sufficient reason

to waive the timeliness requirement on other grounds. Accordingly,

the Commission AFFIRMS the agency's dismissal of claims 1 and 4 for

failure to timely contact an EEO Counselor.

Claim 5

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(5)) provides for the dismissal of a

complaint 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); Kuo v. Department of the Navy, EEOC

Request No. 05970343 (July 10, 1998). When such circumstances exist,

no relief is available and no need for a determination of the rights of

the parties is presented.

The record reveals that complainant's evaluation was changed from ratings

of "not achieved" to "achieved" in all five of the critical elements,

the remedy requested by complainant. On appeal, complainant acknowledges

that her evaluation was changed, but contends that she has not received

"an adequate remedy." We note that complainant has not presented evidence

of any other effects resulting from the performance evaluation, and

therefore are not persuaded by complainant's contention on appeal.

Accordingly, the dismissal of claim 5 as moot is AFFIRMED.

Claim 6

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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

21, 1994).

In claim 6, complainant alleges that she was discriminated against when

she received an e-mail regarding early retirement. The Commission

finds that complainant has not established how the alleged incident

resulted in a harm or loss regarding a term, condition, or privilege of

her employment. We agree with the agency that the alleged incident did

not render complainant an "aggrieved" employee. Further, we find that

claim 6 is not sufficient to state a claim of discriminatory harassment.

See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997). Claim 6 was properly dismissed for failure to state a claim.

Accordingly, the agency's decision to dismiss the complaint was proper

and is hereby AFFIRMED. Because of our disposition of the claims as

discussed above, we find it unnecessary to address the agency's decision

to dismiss some of the claims on alternative grounds.

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. � 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 (S1199)

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. 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:

March 16, 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 Equal Employment Assistant

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.