Victoria L. Morgan, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
01994070 (E.E.O.C. Oct. 28, 1999)

01994070

10-28-1999

Victoria L. Morgan, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Victoria L. Morgan v. Department of Transportation

01994070

October 28, 1999

Victoria L. Morgan, )

Appellant, )

)

v. )

) Appeal No. 01994070

Rodney E. Slater, ) Agency No. 3-99-3044

Secretary, )

Department of Transportation, )

Agency. )

______________________________)

DECISION

On April 13, 1999, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated March 9, 1999, dismissing a

portion of the complaint pursuant to 29 C.F.R. �1614.107(a),(b) and (d).

The Commission accepts the appellant's appeal in accordance with EEOC

Order No. 960, as amended.

On November 23, 1998 appellant contacted the EEO office regarding

allegations of discrimination based on reprisal. Informal efforts to

resolve appellant's concerns were unsuccessful. Accordingly, appellant

filed a formal complaint dated February 10, 1999. The agency defined

the allegations as follows:

On July 21, 1997, appellant observed or became aware of employees using

profanity and other derogatory/distasteful statements in the workplace;

On September 24, 1997, appellant was told that she was not selected

for the Nashville Tower Supervisor's position;

On May 9, 1998, appellant was allegedly denied administrative duties

after she had been medically disqualified;

On June 8, 1998, appellant was allegedly denied a familiarization trip;

and,

On October 23, 1998, after appellant was permanently medically

disqualified, facility management allegedly failed to reassign appellant

to an alternative position "anyway else in the Air Traffic division in

the Nashville area."

The agency dismissed allegations 1 - 4 and accepted allegation 5 for

further processing. Specifically, allegation 1 (profanity and distasteful

statements) was dismissed for failure to state a claim. The agency stated

that appellant failed to show that the alleged comments were directed

towards her, or how she was harmed by the statements. Allegations 2

(non-selection) and 4 (denied trip) were dismissed for untimely counselor

contact. According to the agency, appellant should have reasonably

suspected discrimination at the time of the alleged events, September 24,

1997 and June 8, 1998, and contacted a counselor within forty-five days.

The FAD dismissed allegation 3 (denied administrative duties) for raising

the matter in a negotiated grievance procedure that permits allegations

of discrimination.

On appeal, appellant argues that the incidents should not have been

"separated into individual allegations, but should have been acted on

as a whole." She contends that after filing a prior EEO complaint,

a hostile work environment developed and her allegations illustrate how

it "escalated over time."

In response, the agency argues that it properly dismissed some of the

allegations raised in her formal complaint. The agency further argues

that the allegations that were dismissed for untimely EEO Counselor

contact are not part of a continuing violation.

Allegation 1

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(a). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Even where a complainant does not challenge an agency action or inaction

regarding a specific term, condition, or privilege of employment,

the complainant may still state a claim if the complaint allegations

are sufficient to state a hostile or abusive environment claim. See

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

13, 1997); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)

(harassment is actionable if it is sufficiently severe or pervasive to

alter the conditions of the complainant's employment).

In the instant case, we find that the appellant's allegation, regarding

the use of profanity and distasteful statements, fails to state a claim.

Based on a review of the record, it does not appear that the comments

were even directed toward the appellant. She has failed to allege

how the incidents caused her a harm or loss with respect to a term,

condition or privilege of her employment. Further, we do not find

the incidents described in the complaint, illustrating the "language

issue", to be sufficiently severe or pervasive to alter the conditions

of her employment and thus, to create an abusive working environment.

See Backo v. U.S. Postal Service, EEOC Request No. 05960227 (June 10,

1996)(supervisor's remarks on several occasions, unaccompanied by any

concrete employment action, not sufficient to state a claim); Henry

v. U.S. Postal Service, EEOC Request No. 05940695 (February 9, 1995).

Accordingly, the agency's decision to dismiss allegation 1 for failure

to state a claim is AFFIRMED.

Allegations 2 and 4

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 Ball v. USPS, EEOC Request

No. 05880247 (July 6, 1988). 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.

We find that appellant should have reasonably suspected discrimination at

the time she received notice of her non-selection on September 24, 1997

(allegation 2) and when she learned that her request for a familiarization

trip was denied on June 8, 1998 (allegation 4). Appellant's November 23,

1998 counselor contact was well beyond the forty-five day time limitation,

and therefore untimely.

One circumstance under which the time limitation may be waived is if the

otherwise untimely allegation is part of a "continuing violation." In

order to present a continuing violation, appellant must show "a series of

related acts, one or more of which falls within the limitations period."

See United Airlines v. Evans, 431 U.S. 553, 558 (1977); Valentino

v. U.S. Postal Service, 674 F.2d 56 (D.C. Cir. 1982). Appellant must

also establish that the various acts complained of are sufficiently

interrelated by a common nexus so as to constitute a continuing violation.

See Milton v. Weinberger, 645 F.2d 1070 (D.C. Cir 1981).

On appeal, appellant argues that the issues should not have been

separated into individual allegations but regarded as a whole.

The Commission finds, however, that the alleged incidents do not

constitute a continuing violation. Allegations 2 (non-selection) and 4

(denied trip) are not sufficiently related to timely allegation 5 (failed

to reassign). Moreover, we find allegations 2 and 4 to be discrete

employment actions that should have triggered appellant's awareness to

pursue the EEO complaint process at the time that the matters contained

therein purportedly occurred. Therefore, the agency's dismissal of

allegations 2 and 4 is AFFIRMED.

Allegation 3

An employee who is subject to 5 U.S.C. �7121(d) may raise a claim of

prohibited discrimination under either the EEO complaint process or a

negotiated grievance procedure that allows such a claim, but not both. See

29 C.F.R. �1614.301. The employee must elect the forum in which to

pursue the matter. When the grievance is filed first, the individual may

not subsequently file a complaint of discrimination on the same matter.

The agency shall dismiss a complaint or a portion of a complaint where

the complainant has raised the matter in a negotiated grievance procedure

that permits allegations of discrimination. See 29 C.F.R. �1614.107(d).

Here, the agency relied on appellant's statement in her complaint

explaining that she filed a grievance, to dismiss allegation 3 pursuant

to 29 C.F.R. �1614.107(d). However, there is no evidence in the record

supporting this statement. Although the agency has provided a copy of

the relevant portion of the negotiated agreement, a copy of appellant's

grievance is not part of the record. Therefore, the Commission finds

that the agency has provided insufficient evidence to support its final

decision. See Gens v. Department of Defense, EEOC Request No. 05910837

(January 31, 1995). Accordingly, the agency's decision to dismiss

allegation 3 is REVERSED

The agency's decision dismissing allegations 1, 2, and 4 is AFFIRMED.

The agency's decision dismissing allegation 3 is REVERSED and we REMAND

allegation 3 to the agency for further processing in accordance with

this decision and the applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegation (allegation 3)

in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to

the appellant that it has received the remanded allegation 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.

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 (T0993)

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. 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 (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:

10/28/1999

___________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations