01990517
03-28-2000
Tammie J. Phillips, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Tammie J. Phillips v. Department of the Army
01990517
March 28, 2000
Tammie J. Phillips, )
Complainant, )
)
v. )
) Appeal No. 01990517
Louis Caldera, ) Agency No. AOEWF09806I0140
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On October 1, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD), dated August 27, 1998, dismissing
her complaint for untimely counselor contact.<1> The Commission accepts
the appeal in accordance with EEOC Order No. 960, as amended.
On June 11, 1997 complainant filed a formal EEO complaint (Agency
No. AOEWFO9705H0300) regarding sexual harassment. The complaint also
alleged denial of equal pay. The agency issued a FAD, dated October
17, 1997, dismissing the denial of equal pay claim for not being raised
during EEO counseling and for not being "like or related" to matters that
were counseled. Thereafter, on November 18, 1997, complainant contacted
the EEO counselor regarding the equal pay claim. Informal efforts
to resolve complainant's concerns were unsuccessful. Accordingly, on
February 2, 1998, complainant filed a formal complaint alleging that
she was discriminated against when she was told in January 1997 that she
would receive a performance award totaling 3% of her salary, while male
employees received 5% performance awards for the same performance period.
In a FAD dated August 27, 1998, the agency dismissed complainant's
complaint for untimely counselor contact. Specifically, the FAD indicated
that complainant was aware of the 3% award in January 1997, but did not
raise the issue until it was addressed in her prior complaint in June
1997. The agency contends that although complainant argues she did not
suspect her supervisor to be discriminatory until May 1997, the May 19,
1997 Counselor's Report for her prior complaint does not mention the
award issue. Further, the agency determined that complainant's equal
pay claim is not part of a continuing violation.
On appeal, complainant agrees that she was aware of the alleged
discrimination in January 1997. However, complainant argues that when she
questioned her immediate supervisor about the disparity in awards he told
her "there was nothing he could do" and "leave it alone." According to
complainant, these comments were meant to discourage her from pursuing a
discrimination claim. Complainant argues that, in light of the agency's
purported misconduct, the doctrine of equitable tolling should apply to
the time limit. Complainant also seeks to have the basis of reprisal
added to her complaint.
In response, the agency reiterates that complainant suspected
discrimination in January 1997, and that the untimely incident is not
part of a continuing violation. Further, the agency argues that the
time limitation should not be tolled, as complainant had previously
demonstrated a willingness to contact the EEO office.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)) 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).
Thus, the time limitation 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 requirements for contacting an
EEO Counselor may be waived as to certain claims within a complaint
when a continuing violation is demonstrated; 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).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. See Berry v. Board of Supervisors of Louisiana State Univ.,
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, complainant 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 complainant.
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. See Woljan v. Environmental
Protection Agency, EEOC Request No. 05950361 (October 5, 1995).
In addition, EEO time limitations are "subject to waiver, estoppel, and
equitable tolling." 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.604(c)).
"Equitable tolling", which complainant has invoked on appeal, is the
doctrine under which courts have tolled certain requirements where, for
example, there was affirmative misconduct on the part of a defendant,
which lulled the plaintiff into inaction. However, one "who fails to
act diligently cannot invoke equitable principles to excuse his or her
lack of diligence." Hocker v. Department of Transportation, EEOC Petition
No. 05930112 (March 4, 1994).
In the instant case, complainant agrees that she was aware of the alleged
denial of equal pay in January 1997. Moreover, we find that it is a
discrete act that is not interrelated to complainant's prior claim of
sexual harassment. Therefore, complainant's claim is not part of a
continuing violation. With regard to complainant's tolling argument,
we do not find that her supervisor's remarks rise to the level of
discouraging utilization of the EEO process. Accordingly, the Commission
finds that complainant's arguments do not justify an extension of the
time limitation. The agency's dismissal of complainant's complaint was
proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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 (S1199)
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. 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:
March 28, 2000
____________________________
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
1On 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.