01982683
03-03-1999
Bonita H. Elston, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Bonita H. Elston, )
Appellant, )
)
v. ) Appeal No. 01982683
) Agency No. 1A97006
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
Appellant timely initiated an appeal with this Commission from a final
agency decision (FAD) 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., and the Age Discrimination
in Employment Act of 1967, as amended (ADEA), 29 U.S.C. �621 et seq.
Appellant first contacted an EEO counselor on December 2, 1996, alleging
discrimination as the reason for being given a minimally acceptable
performance evaluation for the period covering March 31, 1996,to May 8,
1996, and also for being denied a within grade increase on September 8,
1996, based on that evaluation. On December 4, 1996, she was �notified�
by the EEO Office that her contact was untimely.<1>
Appellant again contacted an EEO counselor on December 16, 1996. After
completion of counseling, appellant filed a formal complaint on March 27,
1997, alleging discrimination based on race (Black), color (black), age
(42), and gender (female), when: (1) she was given a minimally acceptable
performance evaluation for the period covering March 31, 1996,to May 8,
1996, and then denied a within grade increase on September 8, 1996; and,
(2) on November 12, 1996, she was verbally abused by her supervisor during
a meeting in which her work and an interim performance evaluation was
discussed.<2> Following its receipt of the complaint, the agency issued
its FAD (undated) dismissing the complaint in its entirety. The first
issue was dismissed for failure to timely contact an EEO Counselor within
the required forty-five day period pursuant to 29 C.F.R. 1614.105(a); and,
the second issue was dismissed for failure to state a claim upon a finding
that the appellant was not aggrieved, pursuant to 29 C.F.R. 1614.107(a).
In her complaint, the appellant suggests that, taken together, her
allegations constitute a pattern of harassment. In pertinent part she
states: �I have been harassed, and tormented, by this agencies (sic)
management representations.� �I came away feeling abused, and thinking
this merely continues managements (sic) practices of inconsistencies.�
We find that by alleging a continuing, on-going pattern of harassment in
her formal complaint, the appellant has asserted a continuing violation
based on harassment. We note that the FAD does not address this issue.
The Commission had 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 and 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
issues and constitutes a continuing violation. See Valentino v. USPS,
674 F.2d 56,65 (D.C. Cir. 1892); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (September 21, 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 Superviosrs, 715 F.2d. 971,981 (5th Cir. 1983). It is necessary
to determine whether the acts are related by a common nexus or theme.
See Milton v. Weinberger, 645 F2d 1070 (D.C.Cir. 1981).
Within the context of the above legal standard, we find that a fair
reading of the appellant's contentions demonstrates an analogous theme
among the events in question. All of the agency's actions involved
the evaluation of the appellant's work, resulting in poor performance
appraisals and the denial of a within grade increase. Additionally,
all of these decisions were made by the same supervisor. It is also
this same supervisor who allegedly verbally abused her during a meeting
conducted to, once again, assess her work and discuss her interim
performance evaluation. We note also that all of these events are
related chronologically because they arose in successive performance
appraisal periods. Therefore, because the appellant has shown the
required theme, and because the allegations of her second issue fall
within the forty-five day time period, we conclude that a claim of a
continuing violation based on harassment has been established.
Accordingly, we find that the agency's failure to consider the appellant's
claim of a continuing violation based on harassment resulted in an
improper dismissal of the complaint and the FAD is hereby VACATED and
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations 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. �1614.10.
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.
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.F.R.).
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:
March 3, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1We remind the agency that it is improper to advise an employee who
seeks counseling in this manner. EEOC Management Directive 110 (MD 110),
page 2-2, states that an agency is obligated to provide EEO counseling
as soon as possible after the initial contact is made by the employee.
Legal determinations such as �untimeliness� are made by the appropriate
agency official in the event a complaint is filed at the conclusion of
the counseling process. See, ID at page 4-4. Such a determination should
not be made by the EEO Counselor at the point of the initial inquiry.
2In the FAD, the agency sets forth that the appellant also contends that
she was given a minimally acceptable performance evaluation and denied
a within grade increase based on reprisal for her union activity.
However, this issue is not raised by the appellant in her formal
complaint. Moreover, we note that union activity is not a protected basis
under the discrimination statutes applicable in this case. Therefore,
because this matter was not raised by the appellant in her formal
complaint, and because it does not fall within the purview of the EEO
process, it is not a matter properly before the Commission and will not
be considered in this decision.