01992817
12-19-2000
Michael Cristantiello, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Michael Cristantiello v. Army
01992817
December 19, 2000
.
Michael Cristantiello,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01992817
Agency No. 0980911680
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated January 15, 1999, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.<2> In his complaint, complainant alleged
discrimination on the basis of disability (delusional disorder, major
depression) and reprisal (prior EEO activity), when the agency conducted
an allegedly biased and unfair investigation of his work at his position;
allegedly unlawfully and improperly detailed him to another position;
issued him a 14-day suspension for alleged misconduct for actions at
his work prior to the detail; notified him that he was being placed
on unpaid status; and allegedly sought to earlier discourage him from
proceeding with his EEO complaint.
BACKGROUND
The agency, in its FAD, identified the issues in the complaint as
alleging that complainant was discriminated against: when he was
detailed to Broken Arrow, OK, on October 15, 1997 (lasting until
July 7, 1998) (issue 1); and when, on June 30, 1998, he received a
14-day suspension for alleged misconduct (effective July 8, 1998)
(issue 2).<3> The agency dismissed the allegations pursuant to EEOC
Regulation 29 C.F.R. � 1614.107(a)(2), for complainant's failure to
contact an EEO Counselor within the applicable 45-day time period
established by 29 C.F.R. � 1614.105(a)(1). The agency noted that
complainant first contacted the EEO office on September 11, 1998,
with initial contact with the EEO Counselor on September 14, 1998.
The agency further found that the incidents did not constitute ongoing
and continuous discrimination, on the ground that they were not matters
�repeatedly and uninterruptedly continued over a period of time� and were
�sufficiently distinct and discrete to trigger� the 45-day time period.
The �other allegations� in the complaint were also dismissed pursuant
to 29 C.F.R. � 1614.107(a)(2), because those matters were not brought
to the attention of the EEO counselor and were not like or related to
the matters brought to the attention of an EEO counselor.
On appeal, complainant essentially argues that the FAD did not properly
consider all of the allegations in his complaint, and that he has been
subjected to a continuous course of retaliation. The agency replied in
opposition to the appeal.
FINDINGS AND ANALYSIS
Complainant's Allegations
At the outset, we consider whether the FAD properly addressed the
dismissal of the �other allegations� relating to: the investigation of
complainant's position prior to his detail (issue 3), the complainant's
notification that he was being placed on unpaid status (issue 4), and
the discouraging of the filing of the retaliation complaint (issue 5).
We follow this course, in part, because these �other allegations,� if
properly before the Commission, may materially affect the validity of
the FAD's timeliness findings, concerning the allegations with respect
to complainant's detail and his suspension. In Ericson v. Department of
the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission
stated that �the agency has the burden of providing evidence and/or proof
to support its final decisions.� See also Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992).
The complaint, which was filed November 30, 1998, was submitted earlier to
the Director, Human Relations, EEO Programs, and was dated September 11,
1998, the date the agency acknowledges complainant first contacted the
EEO office. It cannot be disputed that the complaint was also before
the EEO counselor. More specifically, in the FAD, the agency suggests
that complainant clarified the complaint to embrace only the two issues
delineated in the FAD (issues 1 and 2) and refers to a memorandum of the
EEO counselor, dated November 24, 1998. However, the EEO counselor,
in the memorandum, recognized that issue 3, the alleged improper
investigation, related to the detail to Broken Arrow, OK (issue 1),
and the subsequent 14-day suspension (issue 2), and also states that
issue 4, concerning being in a non-pay status (at least in part),
directly related to the suspension. When issue 5, the discouraging
of the filing of the retaliation complaint (allegedly in August 1998),
was discussed with complainant's attorney, the EEO counselor indicated
he could not tell with certainty whether the alleged complaint was a
grievance or an EEO complaint, so the issue was not addressed. The EEO
counselor explained that complainant was on extended sick leave and had
not been placed on non-pay status (issue 4), thus suggesting the matter
was not ripe for consideration. The EEO counselor also stated that both
complainant and his attorney agreed that the only issues to be addressed
were those regarding the detail and the suspension (issues 1 and 2).
The Commission concludes that the agency failed to properly address
complainant's claims, concerning the investigation of complainant's
position prior to his detail (issue 3), the notification that he was
being placed on unpaid status (issue 4), and the discouraging of the
filing of the retaliation complaint (issue 5). The regulation set forth
at 29 C.F.R. � 1614.107(a)(2), and on which the agency relies for its
dismissal of these other allegations, 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).
The record on appeal reveals that the EEO Office and the EEO counselor
were notified of issues 3, 4, and 5. The EEO counselor further
acknowledged that the investigation of complainant's work at his position
prior to the detail (issue 3) was related to the detail (issue 1) and
14-day suspension (issue 2), and that the allegation of being in non-pay
status (issue 4) (at least in part) directly related to the suspension
as well. It is also apparent that the alleged discouraging of the filing
of the retaliation complaint in August 1998 (issue 5) is like and related
to the present complaint. Indeed, the present complaint is a retaliation
complaint, and since complainant asserts that he sought to file it within
several weeks of the present complaint, a reasonable inference could be
made that at least some of the same matters, including the investigation,
detail, and suspension would have been in issue. While there may be
some ambiguity as to complainant's discussions with the EEO counselor
as to the pursuit of the allegations in the complaint, dismissal is not
favored, and should be construed narrowly, especially where a remedial
statute is involved. If complainant wished to narrow his complaint,
there is no evidence from complainant that this has been the case.
From complainant's appeal, it would appear that complainant does not wish
his complaint narrowed. We therefore decline to give decisive weight to
the EEO counselor's view that complainant wished to narrow his complaint.
Accordingly, we conclude that dismissal under 29 C.F.R. � 1614.107(a)(2)
was improper based on the record before the Commission.
The agency also argues that (issue 4) the notification of being
in non-pay status was a proposal, and that at the time of the EEO
counselor's November 24, 1998, memorandum, complainant had been on
extended sick leave, and had not been placed on non-pay status. The
regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part,
that the agency shall dismiss a complaint that alleges that a proposal
to take a personnel action, or other preliminary step to taking a
personnel action, is discriminatory. If complainant's claim was viewed
in isolation, clearly dismissal would be proper. We note, however,
that in certain situations, an agency action that alone might not state
a claim nevertheless becomes sufficient when viewed as one incident
in an alleged pattern of harassment in conjunction with other claims.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Moreover, if a proposed action is purportedly
combined with other acts of harassment to form an alleged pattern of
harassment, the agency may not properly dismiss it as a proposed action.
See Suttles v. United States Postal Service, EEOC Request No. 05970496
(April 8, 1999); Butler v. Department of Labor, EEOC Request No. 05891016
(December 1, 1989). Consequently, when complainant's claim is viewed
in the context of complainant's complaint of harassment, it cannot be
considered a proposed action and the agency's dismissal of that claim
was improper. In the case at hand, complainant has argued that he has
been the victim of continuous retaliation, which is akin to harassment,
e.g., one can retaliate by harassing. Accordingly, we reject the agency's
position that the allegation, involving notification of being placed in
non-pay status, was properly dismissed.
Timeliness of Complainant's Allegations
We now address the timeliness issues. 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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission has also consistently held that a complainant satisfies
the requirement of Counselor contact by contacting an agency official
logically connected with the EEO process, even if that official is not
an EEO Counselor, and by exhibiting an intent to begin the EEO process.
See Cox v. Department of Housing and Urban Development, EEOC Request
No. 05980083 (July 30, 1998); Allen v. United States Postal Service,
EEOC Request No. 05950933 (July 9, 1996). In addition, 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." Guy, v. Department of Energy, EEOC Request No. 05930703
(January 4, 1994) (quoting Williams v. Department of Defense, EEOC
Request No. 05920506 (August 25, 1992)).
We begin our analysis by focusing on complainant's assertion, in his
complaint, that he sought to file a complaint of retaliation on or about
August 21, 1998 (issue 5), and spoke to a human relations specialist of
the agency. Complainant further asserts in the complaint, that he was
misinformed by the human relations specialist, that the time for filing
had passed. Those assertions relate to complainant's allegation that the
agency acted to discourage him from proceeding with his complaint. It is
unclear, but immaterial, whether the complainant's allegation embraces
other assertions of wrongdoing involving discouraging him from proceeding
with his complaint. Nevertheless, on the substantive allegation of the
unlawfulness of discouraging complainant's discrimination complaint,
there was timely EEO counselor contact, since the agency acknowledges
complainant first contacted the EEO office on September 11, 1998. However,
it must be emphasized, that issue 5 may be relevant to the timeliness
of the filing of the other complaint allegations presently under review
on appeal, to the extent those allegations were sought to be presented
on or about August 21, 1998, but were delayed due to the agency's
misinformation.
We now address whether the alleged misinformation may justify vitiating,
in any part, the agency's dismissal for untimeliness of the other
allegations. The Commission has previously held that an agency may
not dismiss a complaint based on a complainant's untimeliness, if
that untimeliness is caused by the agency's action in misleading or
misinforming the complainant. See Wilkinson v. United States Postal
Service, EEOC Request No. 05950205 (March 26, 1996). See also Elijah
v. Department of the Army, EEOC Request No. 05950632 (March 29, 1996)
(if agency officials misled complainant into waiting to initiate EEO
counseling, agency must extend time limit for contacting EEO Counselor).
The agency submits, in its response to the appeal, that complainant
contacted the human relations specialist regarding the filing of
a grievance concerning the 14-day suspension (issue 2), and thus
there was no misinformation about the filing of an EEO complaint with
the Commission. The record indicates that the agency's EEO counselor
talked with complainant's attorney and, despite not being able to tell
with certainty whether the alleged complaint was a grievance or EEO
complaint, did not pursue the matter with complainant. The EEO counselor,
purportedly did discuss the matter with the human relations specialist,
and reported that the matter discussed the filing of a grievance.
However, no explanation is given as to why the human relations specialist
did not provide a statement. The agency could also have considered
whether the human relations specialist was sufficiently related to
the EEO process. The complaint unambiguously states that complainant
sought to file a complaint of retaliation. Under the circumstances,
the discrimination allegation concerning the 14-day suspension (issue 2),
which began July 8, 1998, may possibly have been timely, within the 45-day
time limit, since he allegedly sought to file the complaint on or around
August 21, 1998. To the extent, that the allegation, involving being in
non-pay status (issue 4), directly related to the suspension, that issue
could be timely as well. In view of the above, we find that the agency
did not bear its burden of obtaining sufficient information to support a
reasoned determination as to the timeliness matters discussed above. The
detail (issue l), which began October 15, 1997, and the investigation,
which began prior to the detail (issue 3), were clearly beyond the 45-day
period for EEO counselor contact even on or around August 21, 1998.
In addition, however, the Commission has also 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).
Moreover, the Commission recently issued policy guidance on evaluating
continuing violations in the EEOC Compliance Manual, Volume I , Threshold
Issues at �2 (May 12, 2000). For purposes of a serial continuing
violation, complainant must establish: (1) a series of separate but
closely related discriminatory acts; (2) a timely event, namely, a
discriminatory event or act that occurred within the limitations period;
and (3) a link between the discriminatory event occurring within the
limitations period and the actions that occurred outside the limitations
period.<4> Id. at 2-75 through 2-76.
We therefore find that the agency did not properly consider whether the
matters in the complaint were a continuing violation, since it did not
consider the interrelatedness of the past and present acts. The FAD
focused primarily on whether the incidents were �ongoing and continuous�
and �sufficiently distinct and discrete.� It was error not to consider
the interrelatedness of the past and present acts. The agency should
also consider whether a timely event, namely, a discriminatory event or
act occurred within the limitations period and whether there was a link
between the discriminatory event occurring within the limitations period
and the actions that occurred outside that period. Under a continuing
violation theory, it is possible all of complainant's allegations could
be justified as timely. Of course, complainant has the ultimate burden of
demonstrating that the allegations were part of a continuing violation.
CONCLUSION
Accordingly, the agency's dismissal of issue (5) is REVERSED, and the
claim is REMANDED for further processing. Further, the agency's dismissal
of issues (1), (2), (3) and (4) is VACATED.
ORDER
The agency is ORDERED to perform the following:
(1) The agency must conduct a supplemental investigation to determine
whether the incidents raised in (2) and (4), when considered in light
of complainant's timely claim (5), should be considered timely under
the misinformation theory.
(2) The agency must conduct a supplemental investigation to
determine whether the incidents raised in (1), (2), (3), and
(4), when considered in light of complainant's timely claim (5),
should be considered timely under the continuing violation theory.
Within forty-five (45) calendar days of the date this decision becomes
final, the agency must issue a new notice of processing accepting claim
(5) for investigation, and determining whether the matters raised in (1),
(2), (3), and (4) will be investigated. If the agency determines that
the incidents raised in (1), (2), (3), and (4) should not be investigated,
it must explain the reasons for its determination. Thereafter, the agency
shall conduct an investigation of the accepted claim(s) as provided under
29 C.F.R. �1614.108), and must submit a copy of the investigation along
with the appropriate rights to the complainant within 150 days of the
date this decision becomes final.
(4) The agency shall submit a copy of the notice of processing
addressing all of complainant's claims to the Compliance Officer as
provided below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 19, 2000
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3The alleged misconduct involved complainant's actions from July through
October 4, 1997, prior to his detail to Broken Arrow, OK. The complaint
indicates complainant has been off of work since July 7, 1998, under
doctor's care.
4The guidance also discusses systemic continuing violations, but there
is no suggestion that a systemic continuing violation is at issue in
this case.