Rosemary N. Smith, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 3, 2000
01994715 (E.E.O.C. Mar. 3, 2000)

01994715

03-03-2000

Rosemary N. Smith, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Rosemary N. Smith, )

Complainant, )

)

v. ) Appeal No. 01994715

) 01994716

Togo D. West, Jr., ) Agency No. 991240

Secretary, ) 983633

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On May 16, 1999, complainant filed timely appeals with this Commission

from two final agency decisions (FADs) pertaining to her complaints 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>

Complainant alleged that she was discriminated against when:

she was subjected to harassment based on her race (Black) and reprisal

(prior EEO activity) when she requested a door and lock for her office

in September 1997, but did not receive them until November 1997 (Appeal

No. 01994715); and

she was subjected to retaliatory harassment (prior EEO activity) on

February 19, 1999 when she was warned that the wearing of a headdress

was in violation of the dress code policy (Appeal No. 01994716).

For purposes of judicial economy, Appeal No. 01994715 is hereby

consolidated with Appeal No. 01994716.

The agency dismissed both of these complaints pursuant to EEOC Regulation

64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as � 1614.107(a)(1)), for failure to state a claim, noting

that complainant did not established that she suffered a personal loss

with respect to a term, condition or privilege of employment.

ANALYSIS AND FINDINGS

Turning first to Complaint No. 1, a review of the file reveals that

although complainant alleged that her November 1997 receipt of a door and

lock was preceded by a two-year delay,<2> complainant did not initiate

contact with an EEO Counselor until May 15, 1998. 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). "The time period is triggered as soon

as a complainant suspects discrimination and the complainant may not wait

until all supporting facts have become apparent." Whalen v. Department

of Justice, EEOC Request No. 05960147 (September 18, 1997).

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission. In the case at hand, even assuming complainant did

not suspect discrimination until November 1997, she initiated contact

with an EEO counselor well beyond the 45-day time period and offers no

explanation for her delay. Accordingly, Complaint No. 1 is dismissed

for failure to timely initiate contact with an EEO counselor.

Complaint No. 2 does not state a claim of harassment. In Harris

v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court

reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57,

67 (1986), that harassment is actionable if it is sufficiently severe

or pervasive to alter the conditions of the complainant's employment.

The Court explained that an "objectively hostile or abusive work

environment" is created when "a reasonable person would find [it]

hostile or abusive: and the complainant subjectively perceives it

as such. Harris, supra at 21-22. Thus, not all claims of harassment

are actionable. Where a complaint does not challenge an agency action or

inaction regarding a specific term, condition or privilege of employment,

a claim of harassment is actionable only if, allegedly, the harassment

to which the complainant has been subjected was sufficiently severe

or pervasive to alter the conditions of the complainant's employment.

Here, complainant indicated that the Acting Administrative Assistant to

the Chief of Staff (AC), had harassed her in the past, yet she provided no

details of these past events and described only the headdress incident.

This incident is not sufficiently severe or pervasive to state a claim

of harassment.

We note that complainant's two complaints could be interpreted as

describing an ongoing pattern of harassment at the hands of AC, who was

named as one of the responsible management officials in both complaints.

Even assuming, however, that this is the case and that the untimeliness

of Complaint No. 1 could be excused under the theory of continuing

violation,<3> the issues raised in Complaint Nos. 1 and 2 together are

not sufficiently severe or pervasive to state a claim of harassment.

A review of the record reveals, however, that complainant may have

intended to raise a claim of disparate treatment in relation to Complaint

No. 2.<4> While the complaint itself lists �harassment� as the issue,

the evidence complainant submits on appeal concentrates on AC's treatment

of similarly situated co-workers who allegedly violated the dress code.

Moreover, it is clear from the counselor's report that complainant raised

this issue of dissimilar treatment with the counselor, noting that other

people under the supervision of AC violated the dress code during the

time period in question, but that only she was given a warning.

Commission precedent holds that the Commission has the authority

to �reframe charges and use available materials and information to

articulate lay complainant's charges.� Blue Bell Boots, Inc. v. EEOC, 418

F.2d 355, 357 (6th Cir 1969). Rajpal v. United States Postal Service,

EEOC Request No. 05920037 (May 19, 1992).� Garrett v. United States

Postal Service, EEOC Appeal No. 01963466 (November 29, 1996), request

for reconsideration denied, EEOC Request No. 05970260 (April 30, 1998).

We therefore find that in addition to asserting a claim of harassment,

complainant intended to raise a claim of disparate treatment based on

the warning she received.

While a verbal warning alone is not sufficient to state a claim, there is

some indication in the file that this warning was noted in complainant's

record. Specifically, the counselor's report notes that complainant

was given a warning about violating the dress code and that it was �so

noted.� The record also contains two reports that describe the warning

and appear to have been placed in complainant's file. The Commission

has held that written warning notices that are placed in a complainant's

file constitute a direct and personal deprivation sufficient to render

an individual aggrieved. See McAlhaney v. United States Postal Service,

EEOC Request No. 05940949 (July 7, 1995). The agency's decision to

dismiss Complaint No. 2 was therefore improper.

CONCLUSION

Accordingly, the agency's decision to dismiss Complaint No.1 is affirmed.

The agency's decision to dismiss Complaint No. 2 is reversed and the

complaint is remanded for further processing in accordance with this

decision and applicable regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded complaint in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge

to the complainant that it has received the remanded complaint 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 an

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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

03/03/00 ________________________________

Date Carlton M. 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:

__________________________

Date Equal Employment Assistant 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 While the agency stated that complainant's receipt of a door and lock

was only delayed by two months, documents in the file indicate that she

had submitted her request as early as two years prior to November 1997.

3 The Commission has held that the time requirements for initiating EEO

counseling could be waived as to certain allegations 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. U.S. Postal

Service, EEOC Request No. 05901150 (December 28, 1990).

4 While the record also reveals that complainant may have intended

to raise a disparate treatment claim in Complaint No. 1, because we

dismissed that complaint for untimely counselor contact, we need not

address this issue.