01982797
03-02-1999
Rachel H. Ehrlich, Appellant, v. Robert E. Rubin, Secretary, Department of Treasury, Agency.
Rachel H. Ehrlich v. Department of Treasury
01982797
March 2, 1999
Rachel H. Ehrlich, )
Appellant, )
)
)
v. ) Appeal No. 01982797
) Agency No. 98-1061
)
Robert E. Rubin, )
Secretary, )
Department of Treasury, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed 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. The final agency decision
was received by appellant's attorney on February 4, 1998. The appeal
was postmarked March 5, 1998. 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
The issues on appeal are whether the agency properly dismissed allegations
(1)-(5) for failure to initiate contact with an EEO Counselor in a
timely fashion and properly dismissed allegation (7) for failure to
state a claim.
BACKGROUND
The record indicates that on October 2, 1997, appellant initiated contact
with an EEO Counselor regarding her complaint. Informal efforts to
resolve her concerns were unsuccessful. On November 25, 1997, appellant
filed a formal complaint, alleging that she was the victim of unlawful
employment discrimination on the bases of sex (female) and in reprisal
for prior EEO activity when:
From 1995-1996, management engaged in abusive behavior by criticizing
appellant, by making negative comments about appellant, and by revealing
to a co-worker that he planned to withhold appellant's career ladder
promotion.
After complaining about management's behavior in July 1996, appellant
was detailed to the Office of Counsel from August 19, 1996 to May 31,
1997, which affected her ability to be promoted.
During appellant's detail with the Office Of Counsel, management told
a third party that appellant should fear him after she returns.
On July 1, 1996,<1> appellant received a "fully successful" rating on
her performance appraisal for April 1 - August 11, 1996. Appellant's
performance appraisal also contained negative comments.
On August 12, 1997, appellant filed an agency grievance because she
was told that it was the only way to submit a response to her "fully
successful" rating on her above referenced performance appraisal.
After appellant's return from her detail, management closely monitored
her time and attendance, and imposed strict requirements on her use of
leave.
On October 3, 1997, appellant was harassed in a meeting when she was
criticized about her note-taking abilities and arrival-time at work.
On October 21, 1997, appellant received her grievance decision regarding
her performance appraisal, and realized that the agency did not follow
appropriate procedures.
On February 3, 1998, the agency issued a final decision dismissing
allegations (1)-(5) for untimely contact with an EEO Counselor and
allegation (7) for failure to state a claim. Issues (6) and (8) were
accepted for investigation.
The agency found that appellant first met with an EEO Counselor on October
6, 1997, more than 45 days after the incidents raised in allegations
(1)-(5) occurred. The agency found that appellant had knowledge of
the alleged incidents from 1995 and 1996, pointing to a memorandum she
wrote to the "EEO/Legal Counsel Representative" in July 1996 (hereinafter
"memo") outlining the hostile work environment and harassment to which
she was subjected. Given appellant's knowledge of the discrimination,
the agency ultimately decided that the allegations constituted separate
and distinct acts that could not qualify as a continuing violation for
waiver of the 45-day counselor contact requirement.
With regard to allegation (7), the agency found that appellant failed
to identify any term, condition, or privilege of her employment affected
by the criticism. Further, the agency noted that the one incident was
not sufficiently severe as to constitute harassment.
On appeal, appellant, through her attorney indicates that she is only
disputing the dismissal of allegations (1), (4), and (7). Regarding
allegation (1), appellant claims that after writing the memo to EEO, she
reached an informal agreement providing that she would be detailed to the
Office of Counsel. The purpose of this agreement, appellant asserts, was
to end the harassment she suffered at the hands of management officials.
Appellant indicates that she returned to the Office of Evaluations on
August 18, 1997, because she could not receive her career-ladder promotion
to the GS-11 level while on detail. According to appellant, the informal
agreement was "breached" upon her return, since the harassment resumed
and, therefore, appellant contends that her allegations of harassment
raised in her memo should be reinstated. Appellant also contends that the
allegation was part of a continuing violation by management officials.
Regarding allegation (4), appellant states that she did not receive the
1996 performance review until August 4, 1997. Appellant claims that
she contacted an EEO Counselor the day that she received the review,
and told the counselor that the low appraisal proved that management
was continuing to discriminate against her. According to appellant,
the counselor refused to take the case because she was too busy. The
counselor gave appellant the name of an Employee Relations Specialist
and "told me that in order to get my performance rating raised, I
would have to submit a rebuttal statement." Appellant contends that
both officials (the counselor and Employee Relations Specialist) were
connected with EEO, but that neither informed her she could file an EEO
complaint to contest the rating. Further, "[appellant] believed that
[her] only option was to submit a rebuttal statement through the agency
grievance process. . . ." Appellant argues that her August 4, 1997
call to an EEO Counselor should suffice for initial counselor contact
with regard to allegation (4). Appellant submits a signed Declaration
setting forth her efforts at initiating EEO contact regarding allegation
(4) and specifically identifies the Counselor and Employee Relations
Specialist with whom she spoke.
Finally, appellant argues that allegation (7) should be accepted for
processing because the agency decision to dismiss for failure to state
a claim improperly reached the merits of the allegation when it reasoned
that the issue was not "egregious enough."
The agency provided no response to appellant's appeal brief or
declaration.
ANALYSIS AND FINDINGS
Initially, we note that on appeal, appellant, through her attorney,
clearly indicates her desire to only dispute the dismissal of allegations
(1), (4), and (7). Therefore, we hereby AFFIRM the agency's decision
dismissing allegations (2), (3), and (5) without further discussion.
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 can be triggered
before all the facts that support a charge of discrimination have become
apparent, but not until a complainant reasonably suspects discrimination.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In allegation (1), appellant alleged that she was subjected to
discrimination when during the period from 1995-1996, management engaged
in abusive behavior by criticizing, making negative comments, and revealed
to a coworker that he intended to withhold her career ladder promotion.
On appeal, appellant contends that this allegation is part of a continuing
violation.
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).
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 with at least one timely allegation, 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); see Sabree v. United Brotherhood of Carpenters and Joiners
Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who believed he
had been subjected to discrimination had an obligation to file promptly
with the EEOC or lose his claim, as distinguished from the situation
where a plaintiff is unable to appreciate that he is being discriminated
against until he has lived through a series of acts and is thereby able
to perceive an overall discriminatory pattern.)
Upon review, we find that appellant has failed to establish a continuing
violation. Although it appears that the same management officials
were involved in all of the alleged discriminatory acts, several of
those acts, including the evaluation complained of in allegation (4),
constituted isolated decisions. Most importantly, appellant does
not survive the Sabree analysis. Appellant clearly believed that
she was being discriminated against when she wrote the memo in 1996.
When appellant contacted an EEO official in 1996, she appears to have
elected not to pursue an EEO complaint at that time, but rather, accepted
a detail for over a year. Appellant's belated EEO contact on October 2,
1997, was untimely with regard to allegation (1).
With regard to allegation (4), appellant contends that she contacted an
EEO Counselor on August 4, 1997, however, the counselor stated that she
was too busy and directed appellant to an Employee Relations Specialist.
Further, appellant contends that both the EEO Counselor and the Employee
Relations Specialist advised her that her option for challenging her
appraisal was to submit a rebuttal statement through the agency grievance
process. In support of her contentions, appellant submitted a signed
Declaration in which she specifically identifies the agency officials
with whom she spoke.
A complainant commences the EEO process by contacting an EEO Counselor
and "exhibiting an intent to begin the complaint process." See Gates
v. Department of Air Force, EEOC Request No. 05910798 (November 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194 (May
24, 1990)). For purposes of timeliness, contact with an agency official
who is "logically connected with the EEO process" is deemed a Counselor
contact. Jones v. Department of the Army, EEOC Request No. 05900435
(September 7, 1990); see Kemer v. General Services Administration,
EEOC Request No. 05910779 (December 30, 1991).
Upon review, we find that appellant has presented unrebutted testimony
that she contacted an EEO Counselor on August 4, 1997, and subsequently
spoke with an Employee Relations Specialist, clearly indicating her
belief that her appraisal rating had been affected by prohibited
discrimination. The agency proffered not response to appellant's
contentions. Accordingly, we find that appellant timely attempted
to initiate EEO contact on August 4, 1997, regarding her performance
appraisal rating for April 1 - August 11, 1996.
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).
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).
In allegation (7), appellant alleged that on October 3, 1997, she was
harassed when in a metting she was criticized about her note-taking
abilities and arrival time at work. The Commission has consistently
held that a remark or comment unaccompanied by concrete action is not
a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. Henry v. USPS, EEOC Request
No. 05940695 (February 9, 1995). We find that allegation (7) involves an
isolated incident, which lacks the requisite severity to state a claim.
See James v. Department of Health and Human Services, EEOC Request
No. 05940327 (September 20, 1994) (holding that a single incident
or group of isolated incidents will not prove a discriminatory work
environment unless the harassment is very severe); c.f. Walker v. Ford
Motor Company, 684 F.2d 1355 (11th Cir. 1982)(finding severe group of
incidents adequate to establish hostile work environment). We note
that allegation (7) does not appear to be related to allegations (4),
(6), or (8), which are to be processed.
CONCLUSION
Accordingly, the agency's decision to dismiss allegations (1), (2),
(3), and (5) for failure to timely contact an EEO Counselor is AFFIRMED.
The dismissal of allegation (7) for failure to state a claim is hereby
AFFIRMED. The agency's decision to dismiss allegation (4) is REVERSED
and allegation (4) is hereby REMANDED for further processing in accordance
with the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation 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 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.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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:
Mar 2, 1999
________________ ________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations
1The date of the review, as stated by the agency, is some 42 days before
the end of the working period that was reviewed (ending August 11, 1996).
Presumably, the agency was referring to the date on which appellant's
supervisor "submitted" the review � July 1, 1997, rather than 1996.
The 1997 date is supported by the counselor's report, and repeated by
appellant in both her formal complaint and her declaration submitted on
appeal.