01983567
04-29-1999
Rosetta F. Barber, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Rosetta F. Barber v. Department of the Navy
01983567
April 29, 1999
Rosetta F. Barber, )
Appellant, )
)
v. ) Appeal No. 01983567
) Agency No. DON 98-00228-003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On April 2, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on March 19, 1998,
pertaining to 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
(ADEA), as amended, 29 U.S.C. �621 et seq. In her complaint, appellant
alleged that she was subjected to discrimination on the bases of sex
(female), age (over 40), and in reprisal for prior EEO activity when:
Although appellant has an Office Automation GS-0029-06 position,
appellant has been given assignments formerly performed by a GS-12
Engineer and a GS-11 Environmental Protection Specialist;
Appellant's position description has not described the assignments
appellant has been given, i.e.:
The legal issue of signatory authority relative to signing manifests; and
The technical nature of appellant's job, e.g. classifying waste, limiting
the amount of waste accepted by the hazardous waste warehouse to conform
with state and federal guidelines relative to management practices.
Appellant's position description describes the work of a clerical
position, not a technical position;
On October 20, 1997, appellant received the "APAS" by which she will
be evaluated on June 30, 1998. Under the guise of a GS-06 position
description, appellant is given jobs that require both technical
knowledge and the ability to make decisions, as evidenced by Part III,
Work Plan (Critical Elements) of appellant's APAS. However, appellant
is accorded the rank of a GS-06 clerical worker who is required to have
no technical knowledge and has no authority to make decisions;
On October 10, 1996, appellant was excluded from environmental meetings;
In a June 11, 1997 Department Head Meeting, appellant's devaluation
based on her GS-rating was underscored; and
Appellant engaged in an ongoing effort to prove her knowledge and ability
to her supervisor, a fact that is accepted by appellant's instructors,
contractors, and other individuals with whom appellant comes into
contact.
The agency accepted allegations (1), (2)(b), and (3) for investigation,
dismissed allegations (2)(a), (4), and (5) pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for untimely counselor contact, and dismissed
allegation (6) pursuant to EEOC Regulation 29 C.F.R. �1614.107(a),
for failure to state a claim. Specifically, the agency found that
appellant made her initial counselor contact on October 20, 1997.
Regarding allegation (2)(a), the agency found that appellant gained a
reasonable suspicion of discrimination when she received a copy of her
position description on March 27, 1997. Further, the agency found that
appellant mentioned allegation (2)(a) in a prior complaint, Agency Number
DON-96-00228-004. The agency also found that allegations (4) and (5)
comprised separate and distinct actions that occurred more than one year,
and more than four months, prior to appellant's EEO contact, respectively.
Finally, the agency found that allegation (6) expressed a general concern,
but did not allege a specific harm to a term, condition or privilege of
employment.
On appeal, appellant argues that signing manifests (allegation (2)(a))
requires the technical knowledge referred to in allegation (3), and
therefore, allegation (2)(a) should be accepted with allegation (3).
Further, appellant claims that each manifest that she signs is a separate
act of discrimination. Regarding allegation (5), appellant claims
that she knew she was being discriminated against on July 7, 1997, when
appellant was asked to perform building inspections. Appellant further
alleges that she was given assignments normally reserved for GS-12
employees, and was given incorrect deadline dates. Appellant claims that
she contacted a counselor immediately after discovering the deadline
problems. Appellant argues that her allegations exhibit a pattern of
continuing harassment.
In response, the agency noted that appellant addressed the merits of her
allegations, but failed to discuss timely counselor contact. The agency
argues that appellant's claim of continuing violation should not excuse
appellant's untimeliness. The agency claims that appellant had reasonable
suspicion of discrimination at the time each allegation occurred.
Regarding allegation (2)(a), the agency notes that appellant received
her current position description, number QLA 2300, on March 27, 1997.
Further, the agency argues that although appellant's prior complaint,
DON 96-00228-004, involved her prior position description (QLA 2237),
appellant must have suspected discrimination the day that she received
the new position description, because her prior complaint alleged the
same problem with position description QLA 2237, as appellant alleges
with position description QLA 2300 in the present complaint. Regarding
allegation (4), the agency notes that appellant included a October 10,
1996 "Memorandum for the Record," with her formal complaint, in which
appellant recorded her "heightened . . . feeling that [appellant] was
encountering retaliation again. . . ." Further, the agency notes that in
that Memorandum for the Record, appellant notes that the Department Head
Meeting "did not erase [appellant's] awareness that [her] classification
reflects discrimination."
A review of the record reveals that by letter dated March 7, 1998,
appellant responded to the agency's February 13, 1997 request for
clarification, and outlined the allegations currently at issue.
The record contains a copy of the investigative report of Agency Number
DON 96-00228-004, which addresses signing manifests. The record also
includes appellant's Memoranda for the Record quoted above, an undated
copy of a GS-0029-06 Office Automation Assistant position description,
number QLA 2204. The record does not contain a copy of position
description QLA 2300.
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 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.
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 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 McGivern v. U.S. 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, 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, 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 appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
Jackson v. Department of the Air Force, EEOC Request No. 05950780 (June
27, 1997); see Sabree v. United Brotherhood of Carpenters and Joiners
Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who believed he
had been subjected to discrimination had an obligation to file promptly
with the EEOC or lose his claim, as distinguished from the situation
where a plaintiff is unable to appreciate that he is being discriminated
against until he has lived through a series of acts and is thereby able
to perceive an overall discriminatory pattern).
The Commission finds that appellant initially contacted an EEO Counselor
on October 20, 1997, and allegation (4) took place on October 10, 1996,
more than one year prior to appellant's initial contact. Further,
appellant's October 10, 1996 Memorandum for the Record indicates
appellant's suspicion that she was being subjected to discrimination
at that time. Therefore, allegation (4) could not comprise part of
a continuing violation, because appellant had a obligation to contact
a counselor when she suspected discrimination. See Sabree v. United
Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st
Cir. 1990). Allegation (5) is similarly disposed of even if appellant's
date of reasonable suspicion (July 7, 1997)is followed; appellant
failed to contact a counselor within forty-five (45) days of July 7,
1997, and the allegation does not survive the Sabree requirements for
a continuing violation because appellant had an obligation to contact
a counselor when she suspected discrimination. Regarding allegation
(2)(a), appellant does not dispute that she received her current
position description in March 1997. Given appellant's prior complaint,
she should have had a reasonable suspicion of discrimination on the
date she received the new position description. Further, allegation
(2)(a) also fails the Sabree continuing violation analysis, because she
had an obligation to file promptly. Accordingly, allegations (2)(a),
(4), and (5) were properly dismissed.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Appellant failed to identify a specific harm to a term, condition or
privilege of employment with respect to allegation (6). Accordingly,
the agency's decision to dismiss allegation (6) is AFFIRMED.
CONCLUSION
Accordingly, the agency's decision to dismiss allegations (2)(a), (4),
(5), and (6) is AFFIRMED.
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 (S0993)
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:
April 29, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations