01A52789
02-03-2006
Pamela Rios, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Pamela Rios,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A52789
Agency No. 04-1142
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 16, 2005, dismissing her 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. In her complaint, complainant, a District
Adjudications Officer in the Washington District Office, alleged that she
was subjected to discrimination on the bases of race (Black), sex (female),
color (dark), disability, and reprisal for prior protected EEO activity
when:
1. On January 12, 2004, she received a letter from management
discussing and providing general feedback on the score she
obtained on the Adjudications Promotional Assessment Process
(APAP), and this letter seemed to contradict a conversation in
March 2003 during which she was told that as a term employee,
she was not eligible to participate in APAP. Therefore,
complainant believed that she was denied promotion opportunities
between March 2003 and January 2004.
2. On March 22, 2004, and upon returning to work after six weeks of
convalescent leave, her supervisor verbally reprimanded
complainant on her return because she had not turned around all
of her cases within six months, a standard her supervisor never
communicated to her.
3. On March 25, 2004, complainant overheard her supervisor state on
the phone that she wanted to re-open an application that she had
adjudicated on the ground that complainant had supposedly
approved a false claim.[1]
4. On March 25, 3004, the supervisor asked complainant what her
collateral duties were, so that she might reassign these duties
to other officers, which would justify a lower rating on
complainant's performance appraisal and would cause an adverse
impact on her pay.
5. On March 29, 2004, the supervisor conducted an interview in the
office next to the one the complainant occupies.
6. On unspecified dates, the supervisor: (a) mentioned complainant
by name within earshot and talked about her with co-workers; (b)
traveled down the hall and stated that complainant would "be
gone at the end of the month;" (c) would often refer to
complainant as a "bitch;" (d) stood in the hall and stated that
she knew "how to get" complainant; (e) assigned complainant
additional work in an arbitrary manner and stated that she would
"fix" complainant by giving her "every walk-in that came in;"
and (f) attempted to illustrate to complainant how she was not
performing her job to the best of her ability.
The agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107 (a)(2) for
untimely EEO contact. The agency indicated that the letter dated January
12, 2004 did not constitute an adverse employment action. Further, the
agency noted that complainant received a notice in March 2003 informing her
of her exclusion from the APAP. Thus, complainant should have contacted an
EEO Counselor within forty-five days of the March 2003 notice, not the
January 2004 letter. As such the agency found complainant's EEO contact on
February 4, 2004, to be untimely.
As to claims (2)-(6), the agency dismissed these claims for failure to
state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The agency noted
that the actions alleged did not amount to a present harm or loss with
respect to a term, condition or privilege of employment. Further, the
agency determined that the events did not state a claim of harassment. As
such, the agency dismissed the complaint.
Complainant appealed without comment.
Claim (1)
EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall dismiss
a complaint or a portion of a complaint that fails to comply with the
applicable time limits contained in �1614.105, �1614.106 and �1614.204(c),
unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person
must initiate contact with an EEO Counselor within forty-five days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five days of the effective date of the
action. The Commission has adopted a "reasonable suspicion" standard to
determine when the forty-five 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 support a
charge of discrimination have become apparent. EEOC Regulation 29 C.F.R.
�1614.105(a)(2) allows the agency or the Commission to extend the time
limit if the appellant can establish that complainant was not aware of the
time limit, that complainant did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence appellant was prevented by circumstances beyond her
control from contacting the EEO Counselor within the time limit, or for
other reasons considered sufficient by the agency or Commission.
Upon review of the record, it appears that the crux of claim (1) concerns
the exclusion of complainant from the APAP from March 2003 through January
2004. The record indicated that complainant was told in March 2003 that
she was excluded from this assessment process and therefore excluded from a
tool used by the agency to fill vacancies. Then, by letter dated January
12, 2004, complainant was provided with her feedback report and assessment
scores for the APAP. The letter implied that complainant could participate
through the APAP to apply for vacancies posted. This contradicts what
complainant was told in March 2003. Complainant did not have reasons to
suspect that the exclusion was discriminatory until she received the
January 2004 assessment. Complainant contacted an EEO Counselor on
February 4, 2004, within forty-five dates of receipt of the January 2004
letter. We find that complainant has provided justification for the
extension of the forty-five day time period. Therefore, we reverse the
dismissal of claim (1).
Claims (2)-(6)
As to the remaining claims, the agency dismissed them for failure to state
a claim, asserting complainant did not show how she was harmed or injured.
Further, the agency indicated that complainant did not state a claim of
harassment. Upon review, we find that a fair reading of the complaint
indicates that complainant is asserting that the events alleged in claims
(2) through (6) were designed to create a threatening and intimidating work
environment. As such, we find that the events should be viewed together as
a single claim of discriminatory harassment.
In determining whether a harassment complaint states a claim in cases where
a complainant had not alleged disparate treatment regarding a specific
term, condition, or privilege of employment, the Commission examines
whether the factual allegations, when considered together and assumed to be
true, are sufficient to state a hostile or abusive work environment claim.
See Estate of Routson v. National Aeronautics and Space Administration,
EEOC Request No. 05970388 (February 26, 1999). Consistent with the
Commission's policy and practice of determining whether a complainant's
harassment claims are sufficient to state a hostile or abusive work
environment claim, the Commission has repeatedly found that claims of a few
isolated incidents of alleged harassment are usually not sufficient to
state a harassment claim. See Phillips v. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human
Services, EEOC Request No. 05940481 (February 16, 1995). However, in this
case, contrary to the agency's position, the totality of the actions
complained of, when taken together, are sufficiently frequent and/or severe
to state a claim of a discriminatory hostile work environment. Rideout v.
Department of the Army, EEOC Appeal No. 01933866 (November 22, 1995)
(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)).
Therefore, we reverse the agency's dismissal of claims (2)-(6).
Accordingly, we reverse the agency's dismissal of the complaint and remand
the complaint for further processing as ordered below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with 29
C.F.R. � 1614.108. The agency shall acknowledge to the complainant that it
has received the remanded claims within thirty (30) calendar days of the
date this decision becomes final. The agency shall issue to complainant a
copy of the investigative file and also shall notify complainant 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 complainant requests a final decision without a
hearing, the agency shall issue a final decision within sixty (60) days of
receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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) (1994 & Supp. IV 1999). 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 (M0701)
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
February 3, 2006
__________________
Date
-----------------------
[1] Complainant further contends that her supervisor knew how to reopen a
case and the only purpose for this telephone conversation was to discredit
complainant's work performance and, in doing so, justify lowering
complainant's performance appraisal.