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