01976261
11-17-1998
Rita Smith, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Rita Smith v. Department of the Army
01976261
November 17, 1998
Rita Smith, )
Appellant, )
)
v. ) Appeal No. 01976261
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant filed the instant appeal from an agency decision dated July 24,
1997 dismissing a portion of her complaint for failure to cooperate and
for failure to timely contact an EEO Counselor.
The record shows that appellant initiated contact with an EEO Counselor
on September 10, 1996. Appellant filed a formal complaint dated November
5, 1996 alleging that she was discriminated against on the bases of sex
and age.
In the decision the agency found that appellant's complaint was comprised
of the following allegations:
a. Intention of blocking promotional upgrade.
b. Hostile work environment.
c. Harassment on the job.
d. Defamation of character.
The agency accepted allegation (a) for investigation. The agency
dismissed allegations (b) - (d) for failure to cooperate. The agency
found that appellant was sent two agency letters, dated November 9, 1996,
and December 4, 1996, wherein she was requested to clarify issues raised
in her formal complaint. The agency noted that these letters informed
appellant that her failure to adequately respond could result in the
dismissal of her complaint. The agency found that appellant responded
by letters dated January 6, 1997, January 16, 1997, and April 30, 1997,
but found that these letters were not directly responsive to the agency's
questions.
The record in this case contains the two agency letters dated
November 9, 1996, and December 4, 1996. The November 9, 1996 letter,
possibly misdated, responded to a letter from appellant's attorney
dated December 5, 1996. The agency's letter dated November 9, 1996
stated that the agency was forwarding a letter to appellant requesting
additional information. The agency's December 4, 1996 letter requested
clarification of the complaint. Neither the letter dated November 9,
1996 nor the December 4, 1996 letter from the agency informed appellant
that her failure to satisfactorily respond would result in the dismissal
of her complaint. The record contains a letter dated April 17, 1997,
wherein the agency apprised appellant that her failure to respond to a
clarification request within fifteen days of its receipt could result
in the dismissal of her formal complaint.
The record also contains various responses by appellant to the agency
requests for clarification. In one response, dated January 6, 1997,
appellant provided a five page annotation of alleged incidents of
harassment by an agency official. This response addressed incidents of
harassment that purportedly commenced in mid-December 1994, throughout
1995, and into 1996. The most recent incidents addressed in this
response included a facsimile transmission sent by an agency official
on September 23, 1996, that appellant deemed to be harassing in nature,
and a purportedly threatening statement made by the official during
a conversation with appellant on August 9, 1996. In a response dated
April 30, 1997, appellant's attorney provided a three-page statement
indicating, among other matters, that an agency official blocked
appellant's promotion; made snide comments about her; allowed her
reputation to be smeared; and was attempting to abolish her job.
The agency also dismissed allegations (b) - (d) for failure to initiate
contact with an EEO Counselor in a timely fashion. The agency dismissed
as untimely "[a]ll issues listed prior to 27 July 1996 and mentioned in
your response to this office on January 6, 1997 and April 30, 1997 . . ."
Without further elaboration, the agency found that "each incident"
appellant raised "occurred in mid-December, 1994; October, 1995; June,
1995; May, 1995; November, 1995; April, 1995; September, 1995; August,
1996; February, 1996; April, 1996; and May, 1996."
On appeal, appellant's attorney argues that allegations (b) -(d) were
improperly dismissed for failure to cooperate. Appellant's attorney
specifically argues that appellant provided numerous responses to
agency requests for clarification of the matters raised in her formal
complaint. Appellant's attorney also argues that allegations (b) - (d)
were improperly dismissed on the alternative grounds of failure to timely
contact an EEO Counselor. Specifically, appellant's attorney argues that
appellant's complaint is comprised of ongoing incidents of a hostile work
environment. In response, the agency argues that allegations (b) - (d)
were properly dismissed for the reasons set forth in its final decision.
EEOC Regulation 29 C.F.R. �1614.107(g) provides that the agency shall
dismiss a complaint or a portion of complaint where the agency has
provided the complainant with a written request to provide relevant
information or otherwise proceed with the complaint, and the complainant
has failed to respond to the request within 15 days of its receipt
or the complainant's response does not address the agency's request,
provided that the request included a notice of the proposed dismissal.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
We find that the agency's decision to dismiss allegations (b) - (d)
for failure to cooperate was improper. Specifically, we note that in
response to agency requests for clarification of these allegations,
appellant repeatedly made attempts to be responsive, as reflected in
her letters to the agency dated January 6, 1997, and April 30, 1997.
We note, in particular, that the letter dated January 6, 1997, provides
a detailed annotation of various incidents of alleged harassment from
mid-1994 to the time appellant pursued the EEO complaint process.
The Commission finds that the agency's decision to dismiss allegations
(b) - (d) for failure to prosecute was improper and is REVERSED.
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 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within 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 45 day limitation period is triggered.
See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
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 or discriminatory acts, or the maintenance
of a discriminatory system or policy before and during the filing
period. See McGivern v. USPS, EEOC Request No. 05901150 (Dec. 28,
1990). If one or more of the acts falls within the 45 day period for
contacting an EEO Counselor, then the complaint is timely with regard
to all that constitute a continuing violation. See Valentino v. USPS,
674 F.2d 56, 65 (D.C. Cir. 1982); Verkennes v. Department of Defense,
EEOC Request No. 05900700 (Sept. 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). It is necessary
to determine whether the acts are related by a common nexus or theme.
See Milton v. Weinberger, 645 F.2d 1070 (D.C. Cir. 1981).
The record reflects that, in allegations (b) - (d), appellant alleged a
series of recurring incidents of discrimination beginning in mid-December
1994. The incidents contained in these allegations were not specifically
identified by the agency in its final decision. Instead, the agency noted
that appellant stated that the incidents occurred in particular months
in 1994, 1995, and 1996, and found that these incidents were untimely
with regard to her initial EEO Counselor contact on September 10, 1996
(the agency incorrectly found that contact was initiated on September
11, 1996). The Commission notes that some of the incidents provided
by appellant in her letters of clarification correspond to the dates
identified by the agency in its final decision, and do not fall within
the 45 day limitation period. However, the record reflects that in
her letter of January 6, 1997, appellant identified two matters which
would be timely based on her EEO Counselor contact in September 1996:
on August 9, 1996 an agency official threatened her; and on September
23, 1996 an agency official sent appellant a facsimile message that she
deemed harassing. While the agency did not explicitly identify these
dates in dismissing allegations (b) - (d), clearly these two incidents
are timely. Accordingly, the agency's dismissal of these incidents is
hereby REVERSED.
We note, moreover, that the agency has accepted for investigation
allegation (a), relating to the agency's purportedly improper blocking
of a promotional upgrade for appellant. It is therefore necessary to
determine whether a nexus exists between the matters raised in allegations
(b) - (d) that purportedly occurred more than 45 days prior to appellant's
initial EEO Counselor contact and allegation (a), and the incidents that
allegedly occurred on August 9, 1996 and on September 23, 1996, discussed
supra. Should such a nexus exist, appellant would have established
a timely continuing violation and the agency would be obligated "to
overlook the untimeliness of the complaint with respect to some of the
acts" challenged by appellant. Scott v. Clayton, 469 F.Supp. 22, 26
(D.D.C. 1978). In its final decision, the agency did not consider the
question of a continuing violation. Clearly, appellant alleged that
she was subjected to discriminatory harassment by an agency official,
with specific incidents identified as beginning in mid-December 1994.
The Commission has held that where the agency has failed to consider
this issue, the case must be remanded for consideration of the issue
of a continuing violation theory. Guy v. Department of Energy, EEOC
Request No. 05930703 (Jan. 4, 1994). Therefore the agency's decision
to dismiss the matters addressed in allegations (b) - (d) occurring from
mid-December 1994 through May 1996, is VACATED.
In summary, the Commission makes the following determinations:
The agency's decision to dismiss allegations (b) - (d) for failure to
cooperate was improper and is REVERSED.
The agency's decision to dismiss the portion of allegations (b) -(d)
relating to incidents that purportedly occurred on August 9, 1996, and
on September 23, 1996, was improper and is REVERSED. These allegations
are REMANDED to the agency for further processing in accordance with
the ORDER below.
The agency's decision to dismiss the portion of allegations (b) -
(d) relating to incidents purportedly occurring from mid-December 1994
through May 1996 is VACATED. This matter is REMANDED to the agency for
further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
1. The agency is ORDERED to determine whether the portions of allegations
(b) -(d) addressing incidents of discrimination from mid-December
1994 through May 1996, along with allegation (a), and the incidents
occurring on August 9, 1996, and September 23, 1996, constitute a
continuing violation. If the agency's determines that these matters
constitute a continuing violation, the agency is to accept them for
further processing. If the agency determines that these allegations do
not constitute a continuing violation, the agency is ORDERED to issue
a new final decision that sets forth the agency's findings. The agency
shall determine whether to process these allegations or issue a new final
decision within 30 calendar days of the date this decision becomes final.
2. Regardless of the agency's determination regarding the existence
of a continuing violation, the agency is ORDERED to process that
portion of allegations (b) - (d) relating to threats by an agency
official during a conversation on August 9, 1996; and a harassing
facsimile transmission on September 23, 1996, in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to appellant that it
has received the remanded allegations within 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 150 calendar days of the date this decision
becomes final, unless the matter is otherwise resolved prior to that time.
If appellant requests a final decision without a hearing, the agency
shall issue a final decision within 60 days of appellant's request.
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 (R0993)
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. 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 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 (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:
November 17, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations