Vernell Fields, Appellant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionJan 7, 1999
01976235_r (E.E.O.C. Jan. 7, 1999)

01976235_r

01-07-1999

Vernell Fields, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.


Vernell Fields, )

Appellant, )

)

v. ) Appeal No. 01976235

) Agency No. CDC-NCHSTP-029-97

)

Donna E. Shalala, )

Secretary, )

Department of Health and Human )

Services, )

Agency. )

)

DECISION

On August 11, 1997, appellant filed an appeal of a June 27, 1997 final

agency decision, received by appellant on July 10, 1997, which dismissed

allegations 1-5 for failure to contact an EEO Counselor in a timely

manner, allegation 6 on the grounds of mootness, and allegation 7 for

failure to state a claim.

The final agency decision framed the allegations of appellant's complaint

as whether appellant was discriminated against on the bases of sex

(female) and race (Black) when the following occurred:

l. on July 8, 1996, appellant was denied the right [by her supervisor]

to call and talk to the Senior Public Health Advisor;

2. on August 14, 1996, appellant's supervisor accused her of being rude

to a clerk;

3. on September 25, 1996 appellant's supervisor telephoned appellant

and spoke to her in an abusive manner;

4. on September 13, 1996 and October 10, 1996, appellant's supervisor

told appellant that she was using too much sick leave;

5. on November 20, 1996, appellant's supervisor attacked her facial

expression/appearance in a staff meeting;

6. on February 12, 1997, appellant's co-worker, a white female, was not

supervising the same type of employees that appellant was supervising; and

7. appellant's supervisor sexually harassed her by asking her to go

out to lunch on several occasions even after she asked him not to do so.

As an initial matter, the Commission finds that the agency failed to

address all of the allegations of appellant's complaint. For example,

in appellant's complaint, she alleged that she was discriminated against

in her yearly performance appraisal. The agency, however, did not

address this allegation in its final decision. A three-page narrative

submitted with appellant's complaint reveals that appellant appears to

be alleging, among other things, that she is being harassed sexually

and non-sexually at work and that the harassment is continuing. In the

narrative, appellant described several incidents, some concerning the same

supervisor. While some of these incidents were identified as separate

allegations in the final agency decision, others were not addressed.

Although appellant alleged that, among other things, she has had to

face on a �regular basis� disrespect, verbal abuse, false accusations,

threats, denial of use of equipment and leave requests, and overwork

from her supervisor, the agency failed to consider appellant's complaint

as involving an overall allegation of harassment. The Commission has

cautioned agencies against defining issues in a piecemeal manner and

ignoring their pattern aspect. See Meaney v. Department of the Treasury,

EEOC Request No. 05940169 (November 3, 1994); Cobb v. Department of the

Treasury, EEOC Request No. 05970077 (March 13, 1997). The Commission has

held that failure to address an allegation in a complaint is tantamount

to a dismissal by the agency. See Kapp v. Department of the Navy, EEOC

Request No. 05940662 (January 23, 1995). Accordingly, we find that

the agency improperly dismissed several of appellant's allegations by

failing to address them.

Untimely EEO contact

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved

person initiate contact with an EEO Counselor within 45 days of the

date of the matter alleged to be discriminatory or, in the case of a

personnel action, within 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be

extended under certain circumstances and 29 C.F.R. �1614.604(c) provides

that the time limits in Part 1614 are subject to waiver, estoppel and

equitable tolling. The Commission has adopted a "reasonable suspicion"

standard (as opposed to a "supportive facts" standard) to determine

when the 45-day limitation period is triggered. See Ball v. U.S. Postal

Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation

period is not triggered until a complainant should reasonably suspect

discrimination, but before all the facts that would support a charge of

discrimination have become apparent.

The Commission has also 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).

With respect to the issue of timeliness of EEO contact, the agency

failed to address the issue of a continuing violation. Where, as

here, a complainant alleges recurring incidents of discrimination, an

agency is obligated to initiate an inquiry into whether any allegations

untimely raised fall within the ambit of the continuing violation theory.

Guy v. Department of Energy, EEOC Request No. 05930703 (December 16,

1993). In the case at hand, the agency failed to address whether the

allegations constituted a continuing violation. Where an agency's

final decision fails to address the issue of continuing violation,

the complaint must be remanded for consideration of this question and

issuance of a new final agency decision making a specific determination

under the continuing violation theory. See Williams v. Department

of Defense, EEOC Request No. 05920506 (August 25, 1992). Accordingly,

the agency must address the issue of continuing violation on remand.

Mootness

The Commission finds that the agency's dismissal of allegation 6 on the

grounds of mootness was improper. EEOC Regulation 29 C.F.R. �1614.107(e)

requires the agency to dismiss a complaint, or portion thereof, which

is moot. A complaint is moot and a person is no longer aggrieved when

it can be said with assurance that there is no reasonable expectation

that the alleged violation will recur; and interim relief or events

have completely and irrevocably eradicated the effects of the alleged

violation. When both conditions are satisfied, neither party has a

legal, cognizable interest in the final determination of the underlying

questions of fact and law. County of Los Angeles v. Davis, 440 U.S. 625,

631 (1979).

Although allegation 6 as framed by the agency is not entirely clear, the

record reveals that appellant, a supervisory public health advisor, is

alleging that she is being treated differently from another supervisory

health advisor (Person A) because Person A does not have to perform

the same duties as appellant and Person A only has to supervise clerks.

Appellant also alleged that she is not provided with the same equipment

to perform her job as Person A. In the present case, the agency has not

provided any evidence to establish that the two conditions for determining

mootness under Davis have been satisfied. Moreover, appellant's complaint

reflects that she is requesting compensatory damages. In the narrative

to her complaint, appellant alleged that there has been a change in her

mental and physical health and that she has had to seek medical treatment.

Appellant also alleged that she was suffering from loss of appetite,

headaches, fatigue and stress. The Commission has held that, where a

claim for compensatory damages is made, the agency cannot dismiss an

issue as moot unless it can show that the complainant is not entitled

to such damages. Ellicker v. Department of Agriculture, EEOC Request

No. 05931079 (September 22, 1994).

Failure to state a claim

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss

a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103

or �1614.106(a). 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.

A complaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the complainant cannot prove a set of facts

in support of the claim which would entitle the complainant to relief.

The trier of fact must consider all of the alleged harassing incidents

and remarks, and considering them together in the light most favorable to

the complainant, determine whether they are sufficient to state a claim.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997).

In the present case, appellant alleges that she was subjected to

harassment by her supervisor. The alleged harassment consisted of various

actions by her supervisor and allegation 7 was just one more incident

of the alleged harassment. As indicated above, the agency improperly

failed to recognize the pattern aspect of appellant's complaint and

looked at the individual allegations in a vacuum, i.e., in a piecemeal

fashion. Considering that the identified actions were all perpetrated by

appellant's supervisor, that they occurred repeatedly over the span of

several months, and viewing the identified actions and comments in the

light most favorable to appellant, we find that appellant has stated a

cognizable claim under the EEOC Regulations. See Cervantes v. United

States Postal Service, EEOC Request No. 05930303 (November 12, 1993).

Accordingly, the agency's decision to dismiss allegation 7 for failure

to state a claim was improper.

CONCLUSION

Accordingly, consistent with our discussion herein, the agency's final

decision is REVERSED and the complaint is REMANDED to the agency for

further processing.

ORDER

The agency is ORDERED to conduct a supplemental investigation, which

shall include the following actions:

(1) The agency shall define all the issues raised in appellant's

complaint, using the EEO Counselor's report, including appellant's

narrative, in determining the issues presented; and

(2) Thereafter, the agency shall conduct a supplemental investigation

into whether appellant has established a continuing violation.

After completing the investigation, the agency shall decide whether to

process or dismiss any allegations raised in appellant's complaint. 29

C.F.R. �1614.106 et seq. The supplemental investigation and issuance of

the notice of processing and/or final decision must be completed within

thirty (30) calendar days of the date this decision becomes final.

A copy of the final decision and/or notice of processing must be submitted

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:

Jan. 7, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations