01992356
10-21-1999
Virgilia D. Wright, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Virgilia D. Wright v. Department of the Navy
01992356
October 21, 1999
Virgilia D. Wright, )
Appellant, )
)
v. ) Appeal No. 01992356
) Agency No. 98-67399-N01
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The final agency decision was issued on December
30, 1998. The appeal was postmarked January 29, 1999. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
1. The first issue presented is whether the agency properly dismissed
allegations 2 - 6 of appellant's complaint on the grounds that appellant
failed to initiate contact with an EEO Counselor in a timely manner.
2. The second issue presented is whether the agency properly dismissed
allegations 2 - 7 of appellant's EEO complaint on the grounds of failure
to state a claim.
BACKGROUND
Appellant, a Waitress/NA-7420-03, at the Morale, Welfare, and Recreation
Activity's Desert View Conference Center, initiated contact with an EEO
Counselor on July 7, 1998. On August 4, 1998, appellant filed a formal
EEO complaint wherein she alleged that she was subjected to discriminatory
harassment in reprisal for her previous EEO activity when:
On July 1, 1998, her supervisor disapproved her leave request.
On November 8, 1997, the Food and Hospitality Branch Head verbally
counseled appellant for telling a patron that the Desert View Conference
Center was going downhill.
On December 21, 1997, appellant's manager required her to submit a
written statement explaining why she missed a meeting.
On March 13, 1998, appellant's supervisor verbally counseled her for
insubordination toward another employee.
On April 3, 1998, appellant's supervisor verbally counseled her for
being rude to customers.
On May 4, 1998, appellant's supervisor verbally counseled her for being
insubordinate toward the lead waitress.
On July 17, 1998, appellant's manager told appellant not to prepare a
reservation table for a party and refused to speak to appellant about it.
In its final decision, the agency accepted allegation 1 and dismissed
allegations 2 - 7 of appellant's complaint on the grounds of failure
to state a claim. The agency determined that these incidents were
unaccompanied by concrete adverse actions, and that appellant was not
rendered aggrieved with regard to the terms, conditions, or privileges of
her employment. The agency further determined that the alleged actions
could not reasonably be considered likely to deter protected activity by
appellant or other individuals. Allegations 2 - 6 were dismissed on the
grounds that appellant failed to contact an EEO Counselor in a timely
manner. The agency determined that appellant's EEO contact of July 7,
1998, was more than 45 days after the occurrence of the incidents set
forth in allegations 2 - 6. The agency concluded that these allegations
do not meet the criteria of a continuing violation. According to the
agency, the accepted allegation relates to a denial of leave and is
unrelated to the untimely counselings of appellant. The agency noted
that two of the untimely allegations involve actions taken by an agency
official other than the official involved in the accepted allegation.
On appeal, appellant argues that she believed that she needed to go
through her chain of command before she could contact an EEO Counselor.
In response, the agency asserts that appellant had actual notice of
the 45-day limitation period for contacting an EEO Counselor based on
her attendance at EEO training. The agency argues that appellant also
had constructive notice of the 45-day limitation period. In support
of this position, the agency submits an affidavit from the Equal
Employment Manager at the Morale, Welfare, and Recreation Activity.
In the affidavit, this official states that an EEO poster, containing
the 45-day limitation period and the procedure for initiating an EEO
complaint, was affixed to the bulletin board in the Administrative
Office of the Desert View Conference Center, and that a similar poster
containing the same substantive information has continuously been affixed
to that bulletin board since at least 1982. The agency submitted a copy
of the first EEO poster referenced by the EEO Manager. According to
the agency, appellant's belief that she needed to go through her chain
of command before contacting an EEO Counselor is not credible based on
her training and experience with the EEO process. With regard to the
applicability of the continuing violation theory, the agency asserts that
the untimely allegations are not related to the accepted allegation by
a common nexus or theme. The agency maintains that the denial of leave
is distinct from informal verbal counselings and the requirement to
submit a written statement. Further, the agency asserts that although
the verbal counselings may have been recurring, they did not continue
into the 45-day limitation period, and the accepted allegation was not
of a recurring nature. The agency notes that allegations 2 and 3 allege
discriminatory actions by persons other than the person who allegedly
disapproved appellant's leave request.
ANALYSIS AND FINDINGS
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
The Commission has 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 McGovern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989).
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).
The record reveals that appellant initiated contact with an EEO Counselor
on July 7, 1998. The incidents at issue in allegations 2 - 6 occurred
during the period of November 8, 1997 - May 4, 1998. Each of these
incidents occurred more than 45 days before appellant contacted an EEO
Counselor. To the extent appellant claims that she believed she needed
to go through her chain of command before contacting an EEO Counselor,
we note that the use of internal agency procedures to resolve a complaint
does not toll the limitations period for initiating an EEO complaint.
See Williams v. United States Postal Service, EEOC Request No. 05910291
(April 25, 1991). The agency also established that appellant had
constructive notice of the 45-day limitation period, as well as the
procedure for initiating an EEO complaint. In response to the instant
appeal, the agency submitted an affidavit from the Equal Employment
Opportunity Manager for the Morale, Welfare, and Recreation Activity.
This official stated that an EEO poster listing the 45-day limitation
period and the appropriate EEO procedures was affixed to the bulletin
board in the Administrative Office of the Desert View Conference Center,
and that a similar poster containing the same substantive information has
continuously been on that bulletin board since at least 1982. The agency
submitted a copy of the first poster referenced by the EEO Manager.
With regard to the applicability of the continuing violation theory,
we find that the accepted allegation, which involves the denial of
appellant's request for leave, is not interrelated with the dismissed
allegations by a common nexus or theme. Allegations 2 - 6 concern four
occasions in which appellant was verbally counseled and one incident
where appellant was required to submit a written statement to explain her
absence from a meeting. Appellant has not established that allegations
2 - 6 are sufficiently related to the denial of her leave request.
We find that appellant has not submitted adequate justification for an
extension of the 45-day limitation period. Accordingly, the agency's
dismissal of allegations 2 - 6 on the grounds of untimely EEO contact
was proper and is AFFIRMED.<1>
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.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (Apr. 21, 1994).
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).
With regard to allegation 7, we find that appellant has not established
that she was harmed with regard to a term, condition, or privilege
of her employment when her manager would not speak to her about
the instruction for appellant not to prepare a reservation table for
a party. Appellant contends that she was subjected to harassment when
she received the verbal counselings; she was required to submit a written
explanation as to why she was absent from a meeting; her leave request
was denied; and her manager would not speak to her about instructing her
not to prepare a reservation table for a party. In light of the fact
that the only allegations that remain to be considered in a harassment
analysis are the accepted allegation concerning the denial of leave and
appellant not being spoken to by her manager, we find that appellant has
not stated a cognizable claim of harassment under the EEOC Regulations.
These allegations lack sufficient pervasiveness or severity to rise to
the level of harassment. Accordingly, the agency's decision to dismiss
allegation 7 for failure to state a claim was proper and is AFFIRMED.
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 (S0993)
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. 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:
October 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1In light of our affirmance of the agency's dismissal of allegations 2 - 6
on these grounds, we need not address the agency's alternative grounds for
dismissal.