01982424
09-23-1999
Marshall H. Mullins, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency
Marshall H. Mullins v. Department of the Treasury
01982424
September 23, 1999
Marshall H. Mullins, )
Appellant, )
) Appeal No. 01982424
v. ) Agency No. 98-4016
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning his 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 �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The final agency decision was
dated December 30, 1997, and received by appellant on January 13, 1998.
The appeal was postmarked on January 27, 1998. Accordingly, the appeal
is timely (see 29 C.F.R. �1614.402(a)), and is accepted in accordance
with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed appellant's
complaint for failure to state a claim and for untimely contact with
an EEO Counselor. The agency also dismissed appellant's basis of
retaliation.
BACKGROUND
Appellant filed a formal complaint on October 22, 1997, alleging
discrimination on the bases of national origin (Southeastern European),
mental disability (Post Traumatic Stress Syndrome) and retaliation.
The agency characterized the eighteen-page complaint as having the
following allegations:
1) in early 1996, an expected date of completion was set for a sensitive
conduct case;
2) during a phone conversation on April 14, 1997, he was yelled at,
berated and orally admonished about the sensitive conduct case;
3) during a meeting on April 15, 1997, the conduct case was removed from
his supervision;
4) a letter dated May 27, 1997 requested extensive medical reports
and suggested that he either consider a different position within the
Government or consider a disability retirement;
5) in a letter dated June 23, 1997 he was instructed to sign a medical
release form;
6) on June 30, 1997, management officials provided a false statement to
the Office of Workers' Compensation Programs, regarding his request for
leave under the Federal Employment Compensation Act;
7) a letter dated July 9, 1997 indicated that his sick leave would
no longer be approved and ordered him back to work on July 14, 1997,
subject to being placed in Absent Without Leave (AWOL) status and/or
his removal if he failed to comply;
8) on July 14, 1997, his assigned government vehicle was removed from
his possession;
9) on July 18, 1997, he was informed that he would be placed in AWOL
status on July 21, 1997 because he had failed to submit requested
additional medical documentation;
10) on July 28, 1997, a letter was sent to his attorney that contained
false and misleading information;
11) his name was removed from the organizational chart, which listed
his position as vacant, and
12) on September 15, 1997, a co-worker was told that his position would
be vacant and that the co-worker should apply for the position.
In its final agency decision (FAD), the agency dismissed all twelve
allegations of the complaint for failure to state a claim, in that
appellant had failed to show how he had been aggrieved. The FAD also
found that the allegations did not constitute a claim of harassment.
In addition, the agency also dismissed allegations 1 through 11 for
untimely contact with an EEO Counselor. Appellant's first EEO Counselor
contact was on September 15, 1997. The agency found that a continuing
violation did not exist in this case in that each of the complained about
actions were separate and discrete actions, and no timely allegation had
been accepted for processing. The agency dismissed appellant's basis of
retaliation because appellant had failed to allege that he had engaged
in prior EEO activity. This appeal followed.
On appeal, appellant argued, in pertinent part, that the agency
was incorrect in dismissing his allegations. He stated that he had
adequately alleged harm sufficient to state a claim of discrimination
and a hostile work environment. Appellant claimed the agency was
incorrect when it found that he had not alleged a continuing violation.
Appellant also argued that mental and emotional stress caused him to file
in an untimely manner and the time limits should be waived. Appellant
further argued that his basis of retaliation should not be dismissed
because his supervisor knew that he had consulted an attorney regarding
his employment issues and the supervisor's knowledge of the attorney
contact was sufficient to form the basis for a claim of retaliation.
The agency's statement in response refuted appellant's arguments.
It argued that appellant had not established that he was subjected to a
hostile work environment based on his disability; however, this argument
went to the merits of appellant's case. The agency also argued that
appellant was untimely because he had not established the existence of
a continuing violation, and because he had not established that he was
mentally or physically incapacitated during the time period in question.
The agency claimed that it had properly dismissed appellant's basis
of retaliation because his supervisor didn't know he had contacted an
attorney regarding an EEO claim until after July 9, 1997.<1>
ANALYSIS AND FINDINGS
The Commission has previously held that when confronted with claims
involving multiple allegations, an agency should not ignore the "pattern
aspect" of a complainant's allegations and define the issues in a
piecemeal manner where an underlying theme unites the matters complained
of. Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994); Ferguson v. Department of Justice, EEOC Request
No. 05970792 (March 30, 1999); Drake v. Department of the Air Force,
EEOC Request No. 05970689 (March 29, 1999). Appellant broadly alleged
that the terms and conditions of his employment were affected when he
was subjected to unlawful discrimination after he disagreed with his
supervisors over the handling of a case and after he took sick leave
due to his Post Traumatic Stress Syndrome.<2> Appellant alleged that
aspects of his assigned work load had been changed due to discriminatory
reasons. His Post Traumatic Stress Syndrome was aggravated due to his
conflict with his supervisors to such an extent that he had to go out
on extended medical leave. Subsequent to his taking sick leave, he was
repeatedly asked for medical documentation, was told his sick leave would
no longer be approved, was threatened with being put on AWOL status,
had his government vehicle repossessed, and found out that his position
was listed as vacant on an organizational chart as well as learning that
other employees were encouraged to apply for his position, a position
from which he had not resigned. We find that the dismissed allegations
1 through 12, excepting allegation 6, further illustrate appellant's
contention that he was subjected to harassment and discrimination with
regard to the terms, conditions and privileges of his employment.
Therefore, allegations 1 through 12, excepting allegation 6, were
improperly dismissed for failure to state a claim.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. Kleinman
v. U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994);
Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 24, 1993).
A collateral attack involves a challenge to another forum's proceeding,
i.e., the grievance process, the EEO process in a separate case, the
unemployment compensation process, the workers' compensation process,
the tort claims process, and so forth. See Story v. U.S. Postal Service,
EEOC Request No. 05960314 (October 18, 1996), Fisher v. Department of
Defense, EEOC Request No. 05931059 (July 15, 1994). The proper forum for
appellant to raise challenges to agency actions which occurred during the
workers' compensation process is in that process itself. We find that
allegation 6 of appellant's complaint constitutes a collateral attack on
the workers' compensation process. Therefore, allegation 6 was properly
dismissed for failure to state a claim under 29 C.F.R. �1614.107(a).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or within 45 days of the
effective date of the personnel action. The Commission has held that
the time requirement for contacting an EEO Counselor can be waived as
to certain allegations within a complaint when the complainant alleges a
continuing violation, that is, a series of related discriminatory acts,
one of which falls within the time period for contacting an EEO Counselor.
See McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December
28, 1990). If one or more of the acts falls within the 45-day period for
contacting an EEO Counselor, the complaint is timely with regard to all
that constitute a continuing violation. See Valentino v. U.S. Postal
Service, 674 F.2d 56, 65 (D.C. Cir. 1982); Verkennes v. Department of
Defense, EEOC Request No. 05900700 (September 21, 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, 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). 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 the appellant.
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). Incidents which are
sufficiently distinct to trigger the running of the limitations period
do not constitute a continuing violation. Berry. In the instant case,
the same agency officials were involved in all of the examples appellant
offered as evidence of his claim. The nature of the acts alleged is such
that they were not discrete events that would have triggered a reasonable
person's suspicion that their rights were being violated. The allegations
were interrelated in that all could be traced back to appellant's
conflict with his supervisors over the handling of the case, which
allegedly necessitated his extended medical leave. Because allegation
12 was within the 45- day period preceding appellant's EEO Counselor
contact, we find that appellant has established a continuing violation,
and that the agency improperly dismissed appellant's allegations for
untimely EEO Counselor contact.
The agency also dismissed appellant's basis of retaliation from his
complaint because he had not alleged that he had previously engaged
in protected EEO activity. Federal employees are protected from
retaliation by their employing agency when they have opposed an unlawful
discriminatory practice or participated in any stage of a proceeding
under any of the Federal anti-employment discrimination statutes enforced
by the Commission. EEOC Regulation 29 C.F.R. �1614.101(b). In order to
claim reprisal as a basis of discrimination, an appellant must show that
he opposed discriminatory practices or participated in EEO proceedings.
Appellant argued that his supervisor knew that he had contacted an
attorney as of July 3, 1997, and that the attorney contact regarding
his employment related matters was sufficient to form a basis for
retaliation. The record reveals that appellant's supervisor was on
notice that appellant had retained an attorney concerning his leave
and workers' compensation claims as of July 3, 1997. It was not until
receipt of a letter from appellant's attorney, dated July 18, 1997,
that appellant's supervisor was on notice that appellant considered
management actions to be in violation of federal anti-discrimination
statutes, and that appellant was opposed to those actions. Therefore,
the basis of retaliation was properly dismissed for allegations 1 through
8, but was improperly dismissed for allegations 9 through 12.
Accordingly, the decision of the agency regarding allegation 6 and the
dismissal of the basis of retaliation for allegations 1 through 8 was
proper and is AFFIRMED. The decision of the agency regarding allegations
1 through 5 and 7 through 12 and the dismissal of the basis of retaliation
for allegations 9 through 12 is REVERSED and REMANDED for further
processing in accordance with this decision and the proper regulations.
ORDER
On remand, the agency shall accept for processing appellant's claim that
he was subjected to unlawful discrimination after he disagreed with his
supervisors over the handling of a case and after he took sick leave
due to his Post Traumatic Stress Syndrome. The agency shall thoroughly
investigate appellant's allegations, as listed above and any others that
may be detailed in appellant's formal complaint, 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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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:
Sept. 23, 1999
______________ ______________________________
DATE Carlton Hadden. Acting Director
Office of Federal Operations
1 In addition, the agency invited the Commission to reverse what it
called the Commission's policy of applying Americans with Disabilities
Act Title I standards to Rehabilitation Act cases. Inasmuch as this has
been implemented pursuant to statute, we must decline to do so. See 29
U.S.C. �791(g).
2 A term, condition or privilege of employment has been held in Commission
decisions to include, inter alia, promotion, demotion, discipline,
reasonable accommodation, appraisals, awards, training, benefits,
assignments, overtime, leave, tours of duty, etc. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).