01974662
01-05-2000
Marta B. Polinger, Complainant, v. I. Michael Heyman, Secretary, Smithsonian Institute, Agency
Marta B. Polinger v. Smithsonian Institute
01974662
January 5, 2000
Marta B. Polinger, )
Complainant, )
) Appeal No. 01974662
)
v. ) Agency No.1 94-18-050994
) Agency No.2 96-08-050994
)
I. Michael Heyman, )
Secretary, )
Smithsonian Institute, )
Agency )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning 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>
Accordingly, the appeal is accepted in accordance with EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaints for untimely EEO counselor contact, failure to state a claim,
and for raising the same claims that were raised in previous complaints
brought before the agency or the Commission.
BACKGROUND
Complainant, a Museum Technician at the agency's Department of
Invertebrate Zoology, filed a formal complaint in May 1994, claiming
discrimination on the bases of national origin and reprisal when she
received an unacceptable performance appraisal and a notice of continued
unacceptable performance under a Performance Improvement Plan.
Complainant filed another complaint in July 1994, claiming discrimination
on the bases of national origin when she was denied a promotion to
grade 7.
The agency consolidated the complaints and complainant requested a hearing
before an EEO Administrative Judge (AJ). On October 10, 1995, one day
before the hearing, complainant requested that the case be remanded to
investigate a sexual harassment allegation. The AJ granted the request.
On October 10, 1995, complainant claimed to an EEO counselor that her
former supervisor (the Supervisor) sexually assaulted her in October
1992.<2> Complainant filed a formal complaint on November 30, 1995,
claiming discrimination based on sex (female) and national origin
(Colombian) when she notified the agency of the assaults in July 1995,<3>
and the agency failed to adequately investigate and take appropriate
action. Complainant specifically stated that her complaint was not based
on the Supervisor's alleged conduct, but on the agency's failure to act
after becoming aware of her claims.
During counseling, complainant stated that the Supervisor stopped
assaulting her in October 1992, but that he subsequently was verbally and
physically hostile to her, and, as one of two supervisors, was responsible
for giving her negative performance reviews. She subsequently filed
two additional complaints on February 5, 1997, alleging respectively
that the agency failed to adequately investigate her charge that her
Supervisor sexually assaulted her in October 1992, and that he gave her
a negative performance review in April 1994.
The agency issued a final decision addressing the November 30, 1995,
and February 5, 1997, complaints. The agency dismissed the underlying
claim in the November 30, 1995, complaint that the Supervisor assaulted
complainant for untimely EEO counselor contact. The agency dismissed the
claim in the November 30, 1995, complaint that it failed to adequately
investigate and take corrective action for failure to state a claim.
The agency noted that under the mootness doctrine the case no longer
presented a justiciable controversy because the Supervisor no longer
worked at the agency,<4> and its response was reasonably calculated to end
the harassment. The agency dismissed the claims raised in the February 5,
1997, complaints for raising the same matters that were raised in prior
complaints.
Complainant argues on appeal that the agency's inaction continued to
within forty-five days of her October 1995, EEO counselor contact,
and therefore, the contact was not untimely. She argues that the
Supervisor continued to work as a senior emeritus scientist with an
office and laboratory shared with her through the end of 1995, and
that while the sexual assaults did not reoccur after October 1992,
other discriminatory conduct did. She states that the Counselor's
Report specifically mentioned subsequent physical and verbal threats,
and derogatory performance reviews all directly related to the earlier
assaults.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved
person must initiate contact with a counselor within 45 days of the date
of the matter alleged to be discriminatory or, in the case of personnel
action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) provides that the agency
or the Commission shall extend the 45 day lime limit in paragraph
(a)(1) of this section when the individual shows that he or she was
not notified of the time limit and was not otherwise aware of them,
that he or she did not know and reasonable should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or
her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation period
is triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988)
EEOC Regulation 29 C.F.R. � 1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
The Commission finds that complainant failed to timely initiate contact
with an EEO counselor regarding the October 1992 claim of sexual assault.
Using the "reasonable suspicion" standard, complainant should have
suspected discrimination when the Supervisor allegedly assaulted her.
Complainant waited three years to bring forth claims of sexual assault.
To avoid dismissal based on untimeliness she filed a formal complaint
specifically stating that her complaint was not based on the Supervisor's
1992 conduct but on the agency's failure to act once given notice
of the assaults. Complainant is attempting to revive a stale claim.
Complainant refers to recent threats and hostility as evidence of present
harm suffered due to the agency's inaction, however, this is inconsistent
with her assertion that the Supervisor's conduct is not at issue.
Complainant made the agency's reaction to her claim that the Supervisor
assaulted her three years prior the sole issue in her November 30, 1995,
and in one of her February 5, 1997, complaints. Complainant cannot rely
on time-barred claims to justify a present cause of action.
The Commission also finds that both of the February 5, 1997, complaints
state claims that were raised in prior complaints. The first raises
the same claim that is at issue in the November 30, 1995, complaint;
that the agency failed to act on complainant's claims of assault.
The second claims that she was discriminated against when given a negative
performance appraisal in April 1994. That issue was raised in her May
1994 complaint, which is still pending before the agency.
CONCLUSION
Accordingly, the decision of the agency is proper and is AFFIRMED.
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). 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
January 5, 2000
DATE Carlton 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:
1 On 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.
2 Complainant claimed that in October 1992, her supervisor repeatedly
sexually assaulted her by rubbing against her in a sexual manner.
3 The record established that complainant contacted an EEO counselor in
October 1995, about the October 1992 assaults. Complainant claimed in
a December 1995 letter to OEEMA that she first reported the assaults to
both OEEMA and the Office of General Counsel (OGC) in July 1995.
4 The Supervisor retired in May 1993, however, he continued to work
for the agency until approximately October 1995. He was permanently
separated for sexual misconduct after a female intern alleged that he
propositioned and sexually harassed her.