05970792
03-30-1999
Marilyn L. Ferguson Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Marilyn L. Ferguson v. Department of Justice
05970792
March 30, 1999
Marilyn L. Ferguson )
Appellant, )
)
v. ) Request No. 05970792
) Appeal No. 01963722
Janet Reno, ) Agency Nos. F-93-4455
Attorney General, ) F-94-4641
Department of Justice, )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On May 12, 1997, the agency timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in
Marilyn L. Ferguson v. Janet Reno, Attorney General, Department of
Justice, EEOC Appeal No. 01963722 (April 10, 1997), which it received on
April 14, 1997. On May 14, 1997, appellant initiated a cross-request
for reconsideration on the previous decision, which she received
on April 15, 1997. EEOC Regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication of
established policy, 29 C.F.R. �1614.407(c)(2); and the previous decision
is of such exceptional nature as to have substantial precedential
implications, 29 C.F.R. �1614.407(c)(3). For the reasons stated below,
the Commission grants both requests.
ISSUE PRESENTED
Whether the agency properly framed appellant's claims of discrimination,
as set forth in her amended complaint
BACKGROUND
Appellant filed Complaint No. 93-4455 on February 24, 1993, and
Complaint No. 94-4641 on November 23, 1994.<1> She raised two claims
of discrimination in connection with the terms and conditions of her
employment. First she alleged that the agency discriminated against
her on the bases of race (Black), sex, physical disability (chronic
respiratory problems), and reprisal by failing to provide her with a
reasonable accommodation between 1988 and 1994. Second, she alleged that
the agency continuously and systematically denied her the opportunity
to earn a promotion to GS-13 between 1973 and 1993, through subjective
performance appraisal ratings (PARs), disparate case assignments, and
other practices.
Between 1994 and 1996, the parties could not agree on how the issues
in appellant's complaint were to be framed.<2> On April 5, 1996,
the agency issued a final decision in which it framed the issues as
twenty-one separate allegations, defined as follows:
Between 1988 and 1992, management placed appellant in areas containing
chemically processed evidence;
In July 1992, appellant was assigned to a room that was adjacent to a
smoking lounge;
Prior to July 1992, before appellant was placed in restricted duty
status, management assigned her cases that required extensive chemical
processing;
In January 1993, management offered appellant an office space which
was a storage area that housed photographs, negative files, and other
equipment;
From March 1993 through February 1994, appellant was assigned to the
correspondence and special services section, which was isolated from
all other latent fingerprint section personnel, and lacked a desk;
In 1993, appellant requested that management put its offer of
an assignment to the Harkins Building in writing and follow OWCP
guidelines, but no further action was pursued by management regarding
this assignment;
In February 1994, appellant was reassigned to Room 10799C of the JEH
Building, where she felt isolated;
In February 1994, appellant was given a choice of moving back to her old
office, where, on March 17, 1994, a portable air filter was installed,
instead of the purification system that was previously agreed upon;
On July 29, 1994, during her absence, her cases were reassigned;
On September 2, 1994, appellant was placed on administrative leave;
On August 29, 1994, appellant was informed that she had been reassigned
to a GS-12 management analyst position;
Since the assignment of the assistant unit supervisor on February 5,
1993, management changed the selection process for the GS-13 supervisory
fingerprint examiners, effectively excluding her from the pool of eligible
candidates;
On November 30, 1993, appellant received a "superior" performance
appraisal rating (PAR), instead of an "exceptional" PAR;
Since 1973, appellant has only been assigned field trips in the
Northeastern states, local or in the JEH Building;
From 1973 through 1993, appellant received PARs no higher than "superior,"
which precluded her from promotion consideration and quality step
increases;
In 1986 and 1987 appellant's supervisor placed a note in her personnel
file for failing to make proper notations on her worksheet, and constantly
went through her work in an attempt to find and document performance
errors, but did not try to document errors made by similarly situated
white male employees;
In 1990 and 1991, appellant only handled two high profile cases;
In January 1991, appellant received an incentive award which was not
mentioned in appellant's 1990 PAR and appellant later learned that other
individuals' incentive awards were included in their 1990 PARs;
On November 23, 1992, appellant received a superior PAR, rather than an
exceptional PAR;
In 1992, management created specific job descriptions for certain
individuals for promotions to the GS-13, fingerprint specialist position;
and
In June 1992, appellant was rated lower on her PAR due to her Restrictive
Duty Status.
The agency accepted allegations (1) through (13) and rejected the rest.
The agency dismissed allegations (14) through (18) for failure to timely
contact an EEO counselor. It dismissed allegations (19), (20) and (21) on
the ground that they stated the same claims as the accepted allegations.
The previous decision affirmed the agency's dismissal of allegations
(16), (17), (19), and (21). It remanded allegations (14), (15), and
(18) for a determination on the timeliness of her contact with the
EEO counselor. It also remanded allegation (20) for further processing
because the agency did not identify which accepted allegation was the
same as allegation (20). The agency did not challenge the previous
decision's remand of allegation (18) on request for reconsideration.
ANALYSIS AND FINDINGS
Throughout the processing of her complaint, appellant characterized her
complaint as involving her failure-to-accommodate and failure-to-promote
claims. Both of these claims concern the terms and conditions of her
employment.<3> In accepting appellant's complaint, however, the agency
did not frame the issues in terms of the two terms-and-conditions claims.
Instead, it fragmented those claims and characterized each allegation
as a separate and distinct claim. When confronted with claims involving
multiple allegations, the agency should not ignore the "pattern aspect"
of a complainant's claims and define the issues in a piecemeal manner,
as it apparently did here. See Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 12, 1993).
We note at the outset that the agency issued its April 1996 final
decision on Complaint No. 94-4641. In that decision, the agency accepted
allegations (1) through (10), which comprise the failure-to-accommodate
claim. It also accepted allegations (11) (12), (13), and (18), which
are part of the failure-to-promote claim.
All of the allegations that the agency dismissed fall within the
failure-to-promote claim. The agency dismissed allegations (14)
through (17) for untimely counselor contact and failure to establish
a continuing violation.<4> The continuing violation doctrine can be
invoked to suspend the normal time limit for contacting an EEO counselor.
Rowan v. Department of Transportation, EEOC Request No. 05940661 (February
24, 1995). A continuing violation will not be found, however, where the
acts complained of are by themselves capable of triggering a reasonable
suspicion of discrimination. Blighton v. Department of the Treasury,
EEOC Request No. 05940483 (November 29, 1994). Incidents (14) through
(17) involve matters which, in some cases, occurred years before appellant
initially contacted a counselor on December 7, 1992. We therefore agree
with the agency that allegations (14) through (17) are untimely.
This finding does not, however, relieve the agency of its responsibility
to thoroughly investigate all of the circumstances that may be relevant to
appellant's current claim involving her inability to attain a promotion.
See EEOC Management Directive 110 5-4 (October 22, 1992). This means
that allegations (14) through (17) must still be investigated as
background evidence to the extent that they are probative of appellant's
failure-to-promote claim. See Silva v. United States Postal Service,
EEOC Request No. 05960115 (June 20, 1996). We now turn to allegations
(19) through (21), which the agency dismissed for stating claims that
had been addressed during its investigation of Complaint No. 93-4455.
Pursuant to its acceptance of Complaint No. 93-4455, the agency
investigated appellant's November 1992 PAR allegation. See Investigative
Report and Supplemental Investigative Report for Complaint No. 93-4455.
The agency forwarded Complaint No. 93-4455 for a hearing, but the
administrative judge remanded it with directions to issue a final decision
accepting or rejecting appellant's other allegations. In its April 1996
final decision on Complaint No. 94-4641, the agency identified the 1992
PAR as allegation (19). It then dismissed allegation (19) and referred
to the investigative reports in Complaint No. 93-4455 as proof that it
had previously investigated the 1992 PAR. We agree that the 1992 PAR
allegation had been addressed in the agency's investigation of Complaint
No. 93-4455, and need not be revisited, except to the extent discussed
below (See discussion of allegation (21), infra).
Regarding allegation (20), the agency maintains in its request
for reconsideration that it had already accepted and investigated
appellant's allegation concerning the creation of position descriptions
for a GS-13 latent fingerprint specialist. See Investigative Report for
Complaint No. 93-4455, Tab 6, pp. 5-8. The referenced passage from the
investigative report indicates that the agency decided to issue twenty-two
GS-13 promotions to certain GS-12 examiners, based on their unique talents
and capabilities. It also indicates that the agency did not investigate
this matter as a separate claim, but only as background information
in connection with the 1992 PAR allegation. The initial counselor's
report indicates that these positions were approved in January 1991.
Appellant states in her cross-request for reconsideration that these
promotions to GS-13 were accomplished between December 1991 and May 1992.
To the extent that appellant is attempting to raise these promotions to
GS-13 as a separate claim for which she would be entitled to relief, her
contact with the counselor in December 1992 is untimely. Nevertheless,
they should be treated as background information relevant to her current
failure-to-promote claim.
Regarding allegation (21), appellant argues in her cross-request for
reconsideration that the agency mischaracterized this allegation as
involving a separate PAR issued in June 1992, when in fact, she never
received such a PAR. We agree. According to the counselor's report,
one of the reasons that appellant's supervisor gave for not giving her an
"exceptional" PAR in November 1992 was that she was placed on restricted
duty status in July 1992, due to the effects of prolonged exposure to
fumes and chemicals. Thus, allegation (21) is not a separate allegation.
It merely restates allegation (19), except that it substitutes disability
as the basis for discrimination. Appellant was simply seeking to add
disability as a basis in allegation (19), which she is permitted to
do at any stage in the complaint. Angelo v. Department of the Navy,
EEOC Request No. 05971011 (November 13, 1997).<5> Therefore, in its
investigation of Complaint No. 94-4641, the agency should allow appellant
to present evidence on whether her supervisor discriminated against her
on the basis of her disability when he cited her restricted duty status
as a reason for not awarding her an "exceptional" PAR in November 1992.
CONCLUSION
After a review of the agency's request for reconsideration, appellant's
cross-request for reconsideration, the previous decision, and the
entire record, the Commission finds both requests meet the criteria of
29 C.F.R. �1614.407(c). It is the decision of the Commission to grant
the agency's request and appellant's cross-request. The decision of the
Commission in Appeal No. 01963722 is MODIFIED, and appellant's claims
of discrimination involving the terms and conditions of her employment
will be remanded for processing in accordance with our order below.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
ORDER (E1092)
The agency shall accept for processing the following claim:
Whether the agency discriminated against appellant on the bases of race,
sex, physical disability, and previous EEO activity by implementing
certain personnel policies and practices, including but not limited to
performance appraisal ratings and workload assignments, with the intent
to prevent her from becoming eligible for promotion to GS-13 in 1992
and 1993.
The agency shall thoroughly investigate allegations (11) through (20),
listed above, in accordance with 29 C.F.R. �1614.108. It shall investigate
allegations (14) through (17) and (20) as background evidence, to the
extent that such evidence is relevant to the timely allegations comprising
appellant's failure-to-promote claim. It shall also investigate whether
appellant's disability was a factor in her receipt of a "superior" PAR
in November 1992.
The agency shall acknowledge to the appellant that it has received
the remanded allegations within thirty (30) calendar days of the date
that it receives this decision. 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 that it receives this decision, 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.
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:
March 30, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant filed a third complaint, No. F-97-4965. This complaint is not
presently before us, but in letters submitted in support of her request for
reconsideration, appellant asks the Commission to draw an adverse inference
against the agency for failure to investigate Complaint No. F-97-4965. The
agency has since submitted correspondence indicating that Complaint No.
F-97-4965 was reassigned to the U.S. Marshals Service, and is currently
being investigated by that bureau.
2The agency accepted and investigated allegation (19), infra, which
involved appellant's 1992 performance appraisal and forwarded the matter
to an administrative judge for a hearing. Before convening the hearing,
however, the administrative judge returned the case to the agency and
directed it to issue a final decision accepting or rejecting the other
allegations that appellant raised.
3Terms and conditions of employment include, but are not limited to:
promotion; demotion; discipline; reasonable accommodation; appraisals;
awards; training; benefits; assignments; overtime; leave; tours of duty;
etc. Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
4The regulations in effect at that time required an aggrieved employee
to contact an EEO counselor within 30 days of the date of the alleged
discriminatory event. See 29 C.F.R. � 1613.214(a)(1)(i) (superceded).
When the regulations set forth in 29 C.F.R. � 1614 were implemented in
October 1992, the time period for contacting a counselor was extended
to 45 days.
5The investigative report for Complaint No. 93-4455 indicates that
the 1992 PAR allegation was investigated on the bases of race, sex,
and reprisal, but not disability.