01993312
11-04-1999
Victor Battey, Appellant, v. Aida Alvarez, Administrator, Small Business Administration,) Agency.
Victor Battey, )
Appellant, )
)
v. ) Appeal No. 01993312
) Agency No. 12-99-008
Aida Alvarez, )
Administrator, )
Small Business Administration,)
Agency. )
Agency. )
______________________________)
DECISION
On March 19, 1999, appellant filed a timely appeal with this Commission
from a final agency decision issued on February 19, 1999 pertaining to a
complaint of unlawful employment discrimination pursuant to Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The
Commission accepts appellant's appeal in accordance with EEOC No. 960.001.
The record reflects that on October 28, 1998, appellant initiated contact
with an EEO Counselor. During the counseling period, appellant alleged
that management was discriminating against him based on his gender (male)
and reprisal. Counseling failed, and appellant filed a formal complaint
alleging the following:
1. On January 23, 1998 and February 4, 1998, he was denied a temporary
grade increase;
2. On March 13, 1998, appellant was removed from participating in a
nationwide program on operational systems (a special project);
3. On April 3, 1998, appellant was reported away without leave;
4. On May 11, 1998, appellant received a letter of reprimand for not
following office policy;
6. In August 1998, appellant was denied the opportunity to work on a
special project; and
7. On October 18, 1998, appellant's overall performance appraisal report
was lowered.<1>
On February 19, 1999 the agency issued a final decision dismissing above
allegations one thru six for failing to initiate timely contact with an
EEO Counselor. The agency found that allegations one thru six occurred
more than forty-five days prior to appellant's initial EEO contact,
which occurred on October 28, 1998. Furthermore, in their decision,
the agency dismissed appellant's basis of reprisal. Here, the agency
found that appellant had not previously engaged or participated in any
EEO activity therefore, his basis of reprisal must fall. It is from
this decision that appellant appeals.
On appeal, appellant, through his attorney, argues two points. First,
appellant argues that the forty-five day limitation in which to initiate
contact with an EEO Counselor should be extended on the grounds of
equitable tolling. And second, that the basis of
reprisal should not be dismissed because his actions of opposing
managements alleged discriminatory practices constitute involvement in
a protect activity.<2>
As per the issue of timeliness, 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 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented by
circumstances beyond her control from contacting the Counselor within the
time limits, or for other reasons considered sufficient by the agency or
the Commission. Furthermore, the Commission has previously held that an
agency may not dismiss a complaint based on an appellant's untimeliness,
if that untimeliness is caused by the agency lulling complainant into
believing that it was not necessary for him to commence action.
See Seedman v. Alexander's. Inc., 683 F. Supp. 924 (S.D.N.Y. 1987)
See also; Elijah v. Department of the Army, EEOC Request No. 05950632
(March 28, 1996) (if agency officials misled appellant into waiting to
initiate EEO counseling, agency must extend time limit for contacting
EEO Counselor).
We have considered appellant's allegations, and find that, when taken
together, they are sufficient to establish a continuing violation.
The commission has held that the time requirement for contacting
an EEO Counselor can be waived as to certain allegations within a
complaint when the complainant alleges a continuing violation, that is,
a series of related or discriminatory acts, or the maintenance of a
discriminatory system or policy before or during the filing period.
See McGiven v. USPS, EEOC Request No. 05901150 (December 28, 1990).
If one or more of the acts falls within the forty-five day period for
contacting an EEO Counselor, the complaint is timely with regard to all
that constitute a continuing violation. See, Valentino v. USPS, 674
F.2d 56, 65 (D.C. Cir. 1982); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (September 21, 1990). A determination of whether
a series of discrete acts constitute 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). It is necessary to
demonstrate whether the acts are related by a common nexus or theme.
See Milton v. Weinberger, 645 F.2d 1070 (D.C. Cir. 1981).
In the case at bar, appellant's allegations involve a number of
potentially interrelated incidents of discrimination orchestrated
by agency officials. However, in applying the continuing violation
theory, one consideration is whether a complainant had knowledge or
suspicion of discrimination and the effect of this knowledge. See,
Sabree v. United Brotherhood of Carpenters & Joiners Local No. 33, 921
F.2d 396 (1st Cir. 1990). The Commission described Sabree as holding
that a 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 experienced a series of acts and is thereby able to perceive
the overall discriminatory pattern, see Hagan v. Department of Veterans
Affairs, EEOC Request No. 05920709 (Jan. 7,1993); or when the agency
misleads a complainant into waiting to initiate EEO contact or lulls him
into believing that it is not necessary to initiate action. See Seedman
v. Alexander's. Inc., 683 F. Supp. 924 (S.D.N.Y. 1987) See also; Elijah
v. Department of the Army, EEOC Request No. 05950632 (March 28, 1996)
Here, we find that the alleged discriminatory actions from January
1998 thru October 1998 were acts that prompted appellant to have a
reasonable suspicion of discrimination at the time that they occurred.
We note, for example, that on appeal, appellant offers into evidence
several written communications with management informing them of the
discriminatory actions being taken against him. Clearly, appellant had a
suspicion of discrimination. However, within an email from appellant's
supervisor, Mark Barron, he states �...I am encouraging you not to talk
to Shari and just be patient�. It should be noted, that Shari, is an
EEO Counselor. And in a subsequent email to appellant, supervisor Allen
Hoberman, states �...we will commit to treating your issues fairly and
in a responsible manner.� This email was sent in response to appellant
seeking to address the issues of discrimination in the appropriate
forum. In addition, appellant alleges, and the agency fails to rebut,
that on July 30, 1998 appellant contacted Mr. Mitchell to determine the
status of the investigation but, was told � he could expect the results
of the investigation in a couple of weeks and to hang in their�. It is
clear, that management, within their communications, lulled appellant
into believing that he did not have to initiate action, that he should
not contact an EEO Counselor and that they (management) would fairly
and in a responsible manner resolve the issues.
Therefore, appellant has presented adequate evidence that he was
misled and discouraged by the agency in pursuing his EEO rights. Thus,
providing adequate justification pursuant to 29 C.R.F. �1614.105 (a)
(2), for extending the limitation period beyond forty-five days.
Accordingly, the agency's decision to dismiss allegations one thru six,
for failure to initiate contact with an EEO Counselor in a timely fashion
was improper and is REVERSED. Appellant's complaint
is REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
The agency, in their decision, further dismissed appellant's basis of
reprisal because they claim that he did not engage or participate in
any protected EEO activity. The anti-reprisal provision of Title VII
protects those who participate in the EEO process as well as those who
oppose discriminatory employment practices. Because the enforcement
of Title VII depends on the willingness of employees to oppose unlawful
employment practices or policies, courts have interpreted section 704(a)
of Title VII as intending to provide "exceptionally broad protection"
to those who oppose such practices. Pettway v. American Cast Iron Pipe
Co., 411 F.2d 998, 1006 n.18 (5th Cir. 1969). A variety of activities has
been found to constitute opposition. Such as, complaints to supervisors
regarding employment discrimination. See, Armstrong v. Index Journal
Co., 647 F.2d 441 (4th Cir.1981)and EEOC v. Red Baron steak Houses,
47 FEP cases 49 (D.N.D.C. Cal. 1988). Here, the record is clear,
that appellant, on several occasions, informed his supervisors of the
discriminatory actions being taken against him in an effort to eradicate
them. Therefore, appellant has opposed an unlawful employment practice
and is thus covered under Title VII.
Accordingly, the agency's decision to dismiss appellant's basis of
reprisal because he did not participate in a protected activity was
improper and is REVERSED. Appellant's complaint is remanded to the
agency for further processing in accordance with this decision and the
applicable regulations.
Furthermore, the agency, in issuing their final decision, has failed to
address appellant's claim that he has been subjected to a hostile working
environment. In determining whether a harassment complaint states a claim
in cases where a complainant had not alleged disparate treatment regarding
a specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment allegations,
when considered together and assumed to be true, were sufficient to state
a hostile or abusive work environment claim. See Miller v. U.S. Postal
Service, EEOC Request No. 05941016 (June 2, 1995). Consistent with the
Commission's policy and practice of determining whether a complainant's
harassment allegations are sufficient to state a hostile or abusive work
environment claim, the Commission has repeatedly found that allegations of
a few isolated incidents of alleged harassment usually are not sufficient
to state a harassment claim. See Phillips v. Department of Veterans
Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health
and Human Services, EEOC Request No. 05940481 (February 16, 1995).
Moreover, the Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action usually are not a direct and
personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. See Backo v. U.S. Postal Service, EEOC
Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Service,
EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Request No. 01933866 (November 22,
1995) citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).
Also, the trier of fact must consider all of the
circumstances, including the following: the frequency of the
discriminatory conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance. Harris, 510 U.S. at 23.
Therefore, the agency is ordered to investigate the claim of harassment
to determine if the above allegations when taken together unreasonably
interferes with an employee's work performance as articulated in Harris
Supra,.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations basis' 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 acknowledgment 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.
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:
November 4, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1 Appellant is advised that if he wishes to purse, through the EEO
process, the additional allegation he raised for the first time
on appeal, he shall initiate contact with an EEO counselor within
15 days after he receives this decision. The Commission advises
the agency that if appellant seeks EEO counseling regarding the
new allegation within the above 15 day period, the date appellant
filed the appeal statement in which he raised the allegation with
the Commission shall be deemed to be the date of the initial EEO
contact, unless he previously contacted a counselor regarding
this matter, in which case, the earlier date would serve as the
counselor contact date. Cf. Alexandria J. Oatsha v. Department
of the Navy, EEOC Request No. 05970201 (January 16, 1998).
2 Appellant also argues that allegations of discrimination that were
brought to the attention of the EEO Counselor but subsequently omitted
from the formal complaint should be considered at this point as evidence
supporting the basis of retaliation. It is the decision of the Commission
that the complaint will not be amended to add the omitted allegations
since appellant has offered no mitigating circumstance to allow such.