01985264
09-23-1999
Rose Simpson, Appellant, v. William S. Cohen, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Rose Simpson v. Department of Defense
01985264
September 23, 1999
Rose Simpson, )
Appellant, )
) Appeal No. 01985264
v. ) Agency No. XL97022
)
William S. Cohen, )
Secretary, )
Department of Defense )
(Defense Logistics Agency), )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) 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., and the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The FAD
was dated May 19, 1998. The appeal was postmarked on June 19, 1998.
Accordingly, the timely appeal is accepted in accordance with EEOC Order
No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
entire complaint for mootness, and for failure to prosecute, and in part
for untimely EEO Counselor contact and failure to raise the matter with
an EEO Counselor.
BACKGROUND
Appellant initially contacted an EEO Counselor on December 19, 1996.
She then filed a formal complaint on March 29, 1997, alleging
discrimination on the bases of race (Black), color (light-skinned),
national origin (African-American), age (D.O.B. 12/05/52), and reprisal
(prior EEO activity) when:
(1) on September 23, 1996, her request to have two ceiling vents closed,
near her desk, was denied by supervisor A, in favor of a white, female
co-worker who requested that they remain open;
(2) on September 25, 1996, she was counseled for her time and attendance,
for having seven hours of leave without pay, while a white, female
employee, with over five hundred leave without pay hours was not
counseled;
(3) on November 6, 1996, she received a subjective performance appraisal
of fully successful from supervisor A;
(4) on November 7, 1996, she received a leave restriction letter from
supervisor A;
(5) on November 8, 1996, she was required to submit a leave slip for 45
minutes for being late, and was not allowed, by Group Leader A, to make
up the time at the end of the day; and,
(6) on February 20, 1997, she received a leave restriction letter from
Supervisor B.
In its FAD, the agency dismissed appellant's entire complaint for
mootness, and for failure to prosecute. It also dismissed allegations
3, 5, and 6 for untimely EEO Counselor contact, and allegations 3 and
6 for failure to raise the matter with an EEO Counselor. This appeal
followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(g) provides that the agency shall
dismiss a complaint or a portion of a complaint when 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.
An agency may only dismiss an allegation on the basis that appellant
failed to cooperate, if they have provided appellant with notice of
the proposed cancellation, which states the 15 day time limit for
appellant's response. Instead of dismissing for failure to cooperate,
the complaint may be adjudicated if sufficient information is available
for that purpose. The Commission previously has held that the above
regulation is applicable "only in cases where there is a clear record of
delay or contumacious conduct by the complainant." See Anderson v. United
States Postal Service, EEOC Request No. 05940850 (February 24, 1995).
We note at the outset that we do not agree with the agency's dismissal
of appellant's entire complaint for failure to prosecute. We can find
no evidence in the record that the agency ever provided appellant with
notice of proposed cancellation when it requested appellant's daytime
phone number. The Commission finds, therefore, that the agency improperly
dismissed the overall complaint for failure to prosecute.
EEOC Regulation 29 C.F.R. �1614.107(e) allows for the dismissal of
a complaint or allegations therein when the issues raised are moot.
To determine whether the issues raised in appellant's complaint are,
in fact, moot, it must be ascertained: (1) if it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) if interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented. See Hill
v. United States Postal Service, EEOC Request No. 05960289 (January 16,
1997)(citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).
We agree with the agency that allegations 1 and 4 are moot. Allegation
1 concerns ceiling vents at an office where appellant no longer works.
Allegation 4 is also moot because supervisor A is no longer in appellant's
chain of command, and the record demonstrates that the leave restriction
letter was removed from appellant's personnel file. We disagree with
the agency's characterization of allegations 2, 3, 5 and 6 as moot.
Although appellant works in another office with different supervisors,
these allegations still are not moot because the agency has not shown that
the record of appellant having been counseled for time and attendance
involved in allegation 2, the subjective performance appraisal involved
in allegation 3, the leave slip involved in allegation 5, and the leave
restriction letter in allegation 6, have been expunged from appellant's
records. The agency has not, therefore, completely and irrevocably
eradicated the effects of the discrimination.
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 adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) for determining whether contact with an EEO Counselor is timely.
Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Under this standard, the regulatory limitations period "is not triggered
until complainant reasonably suspects discrimination, but before all the
facts that would support a charge of discrimination have become apparent."
Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (March 29,
1990).
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: 1) that although she waited more than 45 days
to initiate EEO counseling, she did not suspect discrimination at the
time the action in question occurred, see Bracken v. Postal Service,
EEOC Request No. 05900065 (March 29, 1990); or 2) she was unaware of
the 45-day time period, see Pride v. U.S. Postal Service, EEOC Request
No. 05930134 (August 19, 1993); or 3) 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. USPS,
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, 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 finding of a unifying theme are whether the same officials
were involved in the adverse actions and whether the incidents were of
a similar nature. Verkennes v. Department of Defense, EEOC Request
No. 05900700 (September 21, 1990). Also relevant to the inquiry is
whether appellant had prior knowledge or suspicion of discrimination
and the effect of this knowledge. Blighton v. Department of Treasury,
EEOC Request No. 05940483 (November 29, 1994)(citing Sabree v. United
Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st
Cir. 1990)). Incidents which are sufficiently distinct to trigger
the running of the limitations period do not constitute a continuing
violation. Berry.
We find that allegations 3, 5, and 6 were timely, and that allegation 2
was not timely. With respect to allegations 3, 5, and 6, we note that
the appellant contacted an EEO Counselor less than 45 days after each of
these allegations occurred. Allegation 3 occurred on November 6, 1996.
Allegation 5 occurred on November 8, 1996. Allegation 6 occurred on
February 20, 1997. Appellant contacted an EEO Counselor on December 19,
1996. Allegations 3 and 5 were, therefore, timely. Although allegation
6 occurred after the initial contact with an EEO Counselor, it occurred
during the time that appellant was being counseled. We, therefore,
consider it to be timely. We agree with the agency that allegation 2
was untimely. Allegation 2 occurred on September 25, 1996. Appellant did
not contact an EEO Counselor until December 19, 1996, more than 45 days
after appellant should reasonably have suspected discrimination with
respect to this allegation. Appellant stated that she knew that her
co-worker was not counseled for having 500 hours of leave without pay,
while she was counseled for having only 7 hours of leave without pay.
We also agree with the agency that this untimely allegation is not part of
a continuing violation. We find this situation was a discrete event which
should have alerted appellant to the need to contact an EEO Counselor.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof 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. An allegation is "like or related" to a counseled
allegation if it clarifies the counseled allegation and could reasonably
have been expected to grow out of the counseled allegation during the
investigation. See Scher v. United States Postal Service, EEOC Request
No. 05940631 (February 2, 1995).
We disagree with the agency's decision that allegations 3 and 6 were not
brought to the attention of an EEO Counselor. A review of the record
reveals that these allegations were either in the EEO Counselor's report
or referenced therein.<1>
Our findings in this case do not, however, relieve the agency of its
responsibility to thoroughly investigate all of the circumstances that
may be relevant to appellant's current allegations involving harassment by
agency officials at her workplace. See EEOC Management Directive 110 5-4
(October 22, 1992). This means that allegations 1, 2, and 4 must still be
investigated as background evidence to the extent that they are probative
of appellant's overall allegation of harassment. See Silva v. United
States Postal Service, EEOC Request No. 05960115 (June 20, 1996).
CONCLUSION
Accordingly, the decision of the agency is REVERSED with respect to
allegations 3, 5, and 6. These three allegations are REMANDED to the
agency in accordance with the ORDER below. Allegations 1, 2, and 4
should be investigated as background evidence of appellant's claim that
she was harassed by agency officials.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations 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 (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:
Sept. 23, 1999
______________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Allegation 6 is mentioned in the Counselor's Report itself.
Allegation 3 is mentioned in appellant's letter of January 29, 1997,
which is referred to in the Counselor's Report.