05970630
12-24-1998
Vera Hailey, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Vera Hailey v. Department of Energy
05970630
December 24, 1998
Vera Hailey, )
Appellant, )
)
v. ) Request No. 05970630
) Appeal No. 01964222
Bill Richardson, ) Agency No. 96(10)OH
Secretary, )
Department of Energy, )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On March 21, 1997, the agency initiated a request to the Equal Employment
Opportunity Commission to reconsider the decision in Vera Hailey v. Hazel
R. O'Leary, Secretary, Department of Energy, EEOC Appeal No. 01964222
(January 16, 1997), which it received on March 5, 1997. EEOC Regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy,
29 C.F.R. �1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons below, the Commission grants
the agency's request.
ISSUE PRESENTED
Whether the agency properly dismissed five allegations concerning events
that took place between the summer of 1993 and October 1994, for failure
to timely contact an EEO counselor.
BACKGROUND
Appellant contacted an EEO counselor on July 28, 1995, in connection with
numerous incidents of alleged discrimination that took place between 1993
and 1995. She filed a complaint in which she set forth the following
allegations:
1. On June 22, 1995, appellant received a certified letter from the
finance director regarding the subject of the collection of money owed
to the Government;
2. On August 15, 1995, appellant received a written notification of
suspension, effective August 18-20, 1995;
3. Appellant was pressured by the finance division director to relocate
to the Ohio field Office, and received reassignment notification dated
June 7, 1995;
4. On May 31, 1995, the human resources director unexpectedly confronted
appellant in the chief financial officer's presence to discuss the
inspector general's investigation of her;
5. On May 24, 1995, appellant was notified that her request for advanced
sick leave had been denied;
6. Appellant was the subject of an investigation by the inspector
general and other agency entities regarding her time and attendance
(dates unspecified);
7. In October 1994, appellant did not receive an award for her efforts
in assisting in the establishment of the Ohio Field Office;
8. In July 1994, appellant was nonselected for the position of staff
accountant;
9. In December 1993, food and garbage was strewn around appellant's
office; and
10. During the Summer of 1993, the acting chief financial officer failed
to timely authorize appellant's travel orders, which resulted in her
missing an important meeting.
In its final decision, the agency accepted allegations (1) through
(5), but dismissed allegations (6) through (10), on the grounds that
appellant failed to timely contact an EEO counselor with respect
to those allegations. The previous decision reversed the agency's
dismissal of allegations (6) through (10) and remanded those allegations
for further processing. The previous decision found that appellant was
raising a single allegation of discriminatory harassment based on race.
In its request for reconsideration, the agency argues, in essence,
that the matters raised in allegations (1) through (10) should have
been treated as separate incidents, rather than a continuous pattern.
Appellant did not respond to the agency's request for reconsideration.
ANALYSIS AND FINDINGS
The previous decision appears to characterize the five dismissed
allegations as part of a continuing violation that encompasses the
five accepted allegations. However, the agency correctly points out
that the previous decision did not utilize the continuing violation
analysis when it determined that the agency should process the five
untimely allegations. We will now do so.
A continuing violation is a series of related acts, one or more of which
falls within the limitations period. Martinez v. Department of Defense,
EEOC Request No. 05950499 (August 1, 1996). An essential ingredient of a
continuing violation is a theme that unites the alleged discriminatory
acts of the employer into a continuous pattern. Vissing v. Nuclear
Regulatory Commission, EEOC Request No. 05890308 (June 13, 1989).
In this case, allegations (1) through (10) clearly concern discrete
rather than continuous occurrences. Whether these acts constitute a
continuing violation depends on whether the timely and untimely acts
were similar in nature, whether the same officials were involved in the
timely and untimely acts, and whether the untimely acts had a degree
of permanence that should have triggered a reasonable suspicion of
discrimination. McDermott v. Department of the Treasury, EEOC Request
No. 05960146 (June 20, 1996); Jackson v. Department of the Air Force,
EEOC Request No. 05950780 (May 24, 1995); Verkennes v. Department of
Defense - Defense Logistics Agency, EEOC Request No. 05900700 (September
21, 1990).
In this case, a comparison of the timely and untimely allegations reveals
that they are completely dissimilar in nature. With the exception
of allegation (6), discussed below, the untimely allegations concern
different personnel actions than the timely allegations, and do not appear
to be related to the timely allegations, or to one another. There are no
indications that any of the officials named in the timely allegations were
involved in the matters raised in the untimely allegations. Moreover,
untimely allegations (7) through (10) concerned isolated occurrences
with sufficiently permanent effects as to trigger a reasonable suspicion
of discrimination. This is particularly true with the nonselection at
issue in allegation (8) and her failure to receive an award in allegation
(7). We therefore find that the agency properly dismissed allegations
(7) through (10).
On the other hand, allegation (6) appears to be related to allegations (4)
and (5). Allegation (6) concerns an inspector general's investigation of
appellant in connection with her time and attendance problems. Allegation
(4) relates to a confrontation that arose out of that investigation.
Allegation (5) involves a sick leave denial that may constitute part of
the subject matter of that investigation. We will therefore direct the
agency to process allegation (6) in conjunction with allegations (1)
through (5).
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
meets the criteria of 29 C.F.R. �1614.407(c), and it is the decision
of the Commission to grant the agency's request. The decision of the
Commission in Appeal No. 01964222 is reversed to the extent that it
requires the agency to process allegations (7) through (10). The order
in the previous decision remains in effect insofar as it requires the
agency to process allegation (6), but is rescinded to the extent that it
directs the agency to process allegations (7) through (10). There is no
further right of administrative appeal from a decision of the Commission
on a request for reconsideration.
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 acknowledgement 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.
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision 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 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.
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:
DEC 24, 1998
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat