01982700
03-05-1999
Christine Sullivan, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Christine Sullivan, )
Appellant, )
)
v. ) Appeal No. 01982700
) Agency No. DOT-98-1032
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed allegation 1 of the appellant's complaint pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a), for failure to state a claim,
and allegation 2 for failure to establish a claim of a continuing
violation. Two additional allegations, regarding leave procedures and
overtime pay, were accepted by the agency for investigation, and are
not at issue in this appeal.
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 experiences 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).
Appellant alleges discrimination on the basis of sex when, on October
10, 1997, she was identified in an e-mail addressed to the staff as
the employee who had not yet submitted an assignment. Appellant argues
male staff members, who did not complete the same assignment were not
identified in the e-mail. She also contends that male staff members
received written reminders from the supervisor regarding completion of
the assignment, but that she did not.
The Commission has repeatedly found that remarks or comments unaccompanied
by a concrete agency action 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). That the �remark� in this case was communicated via
e-mail does not alter the outcome based on the facts alleged. Moreover,
the e-mail itself reads as a thank you from the supervisor to those
who have routinely submitted the assignment in a timely manner. The
appellant's name is mentioned in this context, with a parenthetical
notation that her current assignment may have been misplaced by the
supervisor. Furthermore, the supervisor's failure to issue the appellant
a written reminder to complete the assignment is insufficient to render
her �aggrieved� because the record fails to show that any adverse
consequences would result for late submissions. In fact, the tone of the
e-mail is apologetic, with the supervisor taking responsibility for past
and current late assignments and providing instructions to staff on the
procedure to be used for future assignments.
We find that allegation 1 does not allege �present harm or loss with
respect to a term, condition, or privilege of employment for which there
is a remedy,� so that she is not an �aggrieved employee� within the
meaning of the law cited above. Accordingly, the dismissal of allegation
1 is AFFIRMED.
Allegation 2
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 McGivern 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).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge. Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
In allegation 2, the appellant sets forth a lengthy chronicle of events
describing discriminatory conduct by her supervisor, dating from February
1996 to December 1996. Many of these accounts include a description of
how the appellant thought she was treated differently than male staff
members. The appellant contends that this 1996 chronicle of events is
part of the same pattern of sex discrimination alleged in allegation 1
and her additional two allegations which were accepted by the agency.
She alleges that this pattern constitutes a continuing violation, and
that her entire complaint should be accepted and investigated under
this theory.
Appellant states that she did not realize at that time that she was the
victim of sex discrimination, only that she was being mistreated. However,
in reviewing her chronicle it would appear that the appellant did suspect
sex discrimination while the events were occurring. Appellant makes
frequent references as to how she, and she and a female co-worker
together, were treated unfairly during this period, observing that
male staff members were not treated in the same manner. In fact, the
�MID-LATE OCTOBER 1996" entry indicates that sex discrimination by the
supervisor was discussed in a meeting with him, appellant, and the
other female co-worker; and, the �08-10 OCTOBER 1996" entry reveals
that appellant discussed her concerns about her supervisor's conduct,
including sex discrimination, with a more senior supervisor. However,
the appellant did not initiate the EEO process to address this situation
until November, 1997.
Moreover, the appellant does not allege any additional incidents of
sex discrimination by her supervisor for the period December 1996,
to September 30, 1997; and, December 1996, is the earliest date of
appellant's allegations accepted for investigation by the agency.
Thus, there is an approximately nine month gap between the alleged
discriminatory incidents which the appellant does not address.
Based on the law cited above, we find that these circumstances preclude
the finding of a claim for a continuing violation. First, it is clear
that the appellant either knew or suspected that her supervisor's conduct
was motivated by sex discrimination as early as October 1996, requiring
her to initiate the EEO process within the applicable time limits in
order for this claim to be considered. Secondly, the required �nexus�
between the 1996 chronicle of incidents and the 1997 allegations has not
been demonstrated due to the time gap between these events. Therefore,
a continuing violation claim cannot be based on these facts, and the
dismissal of allegation 2 is AFFIRMED.
Accordingly, we AFFRIM the FAD.
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 (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. 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 5, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations