01992982
03-23-2000
Maria S. Parra, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Maria S. Parra, )
Complainant, )
)
v. ) Appeal No. 01992982
) Agency No. SE-92-02
Andrew M. Cuomo, )
Secretary, )
Department of Housing and Urban )
Development, )
Agency. )
____________________________________)
DECISION
On February 25, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her on
January 26, 1999, 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 basis of national
origin (Hispanic) when:
In January 1981, complainant was not selected for an available Office
of Fair Housing and Equal Opportunity (FHEO) Director position under
Vacancy No. SRO-18-81.
On February 15, 1991, complainant was not selected for an available
Fair Housing Enforcement Branch (FHEB) Chief position under Vacancy
No. 10-MSR-91-006;
On July 22, 1991, complainant was not selected for an available Regional
Homeless Coordinator position under Vacancy No. 10-RBS-91-0127;
On November 4, 1991, complainant was not detailed as Acting Program
Operations Division (POD) Director;
In December 1991, complainant was not promoted to the Acting Program
Operations Division Director position;
On March 18, 1992, complainant was not detailed as Acting Program
Operations Division Director;
On July 2, 1992, complainant was not selected for an available Program
Operations Division (POD) Director position, GS-0360-13, under Vacancy
No. 10-MSR-92-0016;
On unspecified dates complainant was subjected to unspecified harassment
and intimidation.
In its first FAD, dated March 9, 1995, the agency framed complainant's
complaint as solely consisting of claims (1), (2), (3), and (7).
The agency dismissed claims (1) through (3) for failure to initiate
contact with an EEO counselor in a timely manner, and found that
complainant was unable to show that her non-selection under claim (7)
was based on a discriminatory motive. Complainant appealed the agency's
FAD, and on February 13, 1997, the Commission issued a decision vacating
the FAD and ordering the agency to issue a new decision addressing claims
(4) and (6). See Parra v. Department of Housing and Urban Development,
EEOC Appeal No. 01953899 (February 13, 1997). The agency's request for
reconsideration was denied by the Commission. Parra v. Department of
Housing and Urban Development, EEOC Request No. 05970589 (August 11,
1998).
In a subsequent FAD, dated December 21, 1998, the agency first noted that
claim (5) should also have been addressed. The agency determined that
complainant did not raise claims (1) through (6) with the EEO counselor
during counseling. Alternatively, the agency found that complainant's
initial EEO counselor contact occurred on July 9, 1992, and was untimely
with regard to claims (1) through (6). Based on the foregoing, the
agency dismissed claims (1) through (6) and re-instituted its decision
on the merits of claim (7). The FAD did not address claim (8).
On appeal, complainant contends that she timely sought counseling with
an agency EEO counselor (counselor A), but was informed that she could
not file a complaint concerning a temporary position. Additionally,
complainant asserts that the agency's actions constituted a continuing
violation. Finally, complainant contends that the agency again failed
to address the concerns she raised in claim (8).
The Commission notes that the record contains a signed statement
from counselor A, dated October 15, 1992, in which he acknowledged
that complainant contacted him in April 1992, to discuss alleged
discriminatory treatment to which she was subjected. The statement
indicates that complainant was concerned about the incident identified
in claim (6), and that she felt that "this denial was part of a larger
pattern of discrimination against her by management." However, counselor
A asserts in his statement that the discussions were informal in nature,
that complainant indicated that she was "building a case which supported
her allegations," and that "it was discussed during this meeting that
[counselor A and complainant] would both 'wait and see' what happened in
[complainant's] division."
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, we find that complainant's contact with counselor
A in April 1992, constituted EEO counselor contact for the purposes
of the regulations. As this contact occurred within forty-five (45)
days of the date on which claim (6) occurred, we find that the agency
erred in dismissing claim (6) for untimely EEO counselor contact.
Counselor A acknowledges that complainant discussed with him the fact
that she felt that she was denied the opportunity to serve as Acting
POD Director because of her national origin. Additionally, the record
discloses that complainant indicated that this incident was "part of a
larger pattern of discrimination against her by management." It is clear
based on these statements, that complainant suspected discrimination at
the time she held discussions with counselor A in April 1992. As such,
counselor A should have been aware that the forty-five (45) day limitation
period for contacting an EEO counselor had begun to run, and should have
therefore warned complainant of the possible consequences of her purported
desire to "wait and see." Absent a clear indication that complainant,
herself, did not wish to pursue her rights under the EEOC regulations,
we find that the agency improperly determined that complainant's April
1992 contact with counselor A was merely "informal."
Notwithstanding our determination that the agency should have considered
April 1992, as the date of initial EEO counselor contact, we find
that this contact was untimely with regard to claims (1) through (5).
The actions identified in claims (1) through (5) occurred between January
1981 and December 1991, beyond the forty-five (45) day limitation period.
It is well-settled that the denial of a promotion and the issuance of
an annual performance appraisal are incidents that have the degree of
permanence which should trigger an employee's duty to assert his rights.
See Jackson v. Department of the Air Force, EEOC Request No. 05950780
(June 27, 1997); Anvari v. Department of Health and Human Services,
EEOC Request No. 05930157 (June 17, 1993).
However, 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).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, it is important, in determining whether a claim for a
continuing violation is stated, to consider whether an complainant
had prior knowledge or suspicion of discrimination and the effect of
this knowledge. Jackson v. Department of the Air Force, EEOC Request
No. 05950780 (June 27, 1997).
It is well-settled that where, as here, there is an issue of timeliness,
"[a]n agency always bears the burden of obtaining sufficient information
to support a reasoned determination as to timeliness." Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).
Moreover, where, as here, a complainant alleges recurring incidents of
alleged discrimination, "an agency is obligated to initiate an inquiry
into whether any claims untimely raised fall within the ambit of the
continuing violation theory." Guy v. Department of Energy, EEOC Request
No. 05930703 (January 4, 1994) (citing Williams). As the Commission
further held in Williams, where an agency's final decision fails to
address the issue of continuing violation, the complaint "must be remanded
for consideration of this question and issuance of a new final agency
decision making a specific determination under the continuing violation
theory." Accordingly, here, where complainant asserts that the agency's
actions were ongoing and continuous, the agency must determine on remand
whether claims (1) through (7) comprise part of a continuing violation.
Inasmuch as the agency must determine whether claim (7) was part of an
overall pattern of alleged discrimination, the agency's decision on the
merits of claim (7) must also be vacated and remanded to the agency.
The Commission finds no credence in the agency's alternative justification
for the dismissal of claims (1) through (6). Volume 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(2)) states, in pertinent part, that an agency shall dismiss a
complaint 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 claim or complaint is "like
or related" to the original complaint if the later claim 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. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990).
In this case, as noted above, the record discloses that complainant
sought counseling in April 1992, where she discussed with counselor A the
incident identified in claim (6), and indicated that this incident was
"part of a larger pattern of discrimination against her by management."
We find, therefore, that the agency was on notice of complainant's claims
concerning alleged discriminatory treatment to which she was subjected
with regard to detail assignments and promotions.
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 the instant case, we find that claim (8) fails to state a claim.
EEOC Regulation 29 C.F.R. � 1614.106(c) provides that a complaint must
contain a statement that is sufficiently precise to describe generally
the action(s) or practice(s) that form the basis of the complaint.
Complainant's generalized allegation that she was subjected to unspecified
instances of harassment and intimidation, without more, is insufficiently
precise to state a claim under the Commission's regulations.
Accordingly, the agency's final decision dismissing claim (8) is AFFIRMED
for the reasons set forth herein. The agency's final decision dismissing
claim (6) is hereby REVERSED, and the dismissal of claims (1) through
(5) and (7) is hereby VACATED. Claims (1) through (7) are REMANDED to
the agency for further processing in accordance with this decision and
the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall undertake a supplemental investigation to determine
if claims (1) through (5) constitute part of a continuing violation,
along with claims (6) and (7).
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a notice of processing and/or a new FAD regarding
claims (1) through (5).
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall also process claims (6) and (7), and any of those claims
found to be timely pursuant to the continuing violation theory under
provision (1) of this Order, 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).
A copy of the agency's notice of processing and/or new FAD 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 (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 (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:
March 23, 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.