01983001
03-17-1999
Ruth Ann Davis, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency
Ruth Ann Davis, )
Appellant, )
) Appeal No. 01983001
v. ) Agency No. 98-68689-003
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency )
)
)
DECISION
INTRODUCTION
On March 6, 1998, appellant initiated an appeal to the Equal Employment
Opportunity Commission (Commission) concerning her December 12, 1997,
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et
seq, and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. Section 621 et seq. The appeal is accepted by the Commission
in accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency improperly dismissed
allegations in appellant's complaint for failure to initiate contact
with an EEO Counselor in a timely fashion.
BACKGROUND
Appellant contacted an EEO Counselor on July 8, 1997, and filed
a complaint of discrimination dated December 12, 1997, against the
agency based on race (African-American), sex (female), color (Black),
national origin (American), and age (DOB: August 27, 1950) raising
allegations that:
(a) In February 1995, management disapproved her training requests and
gave no reason for the disapproval;
(b) In February 1996, management disapproved her training requests and
gave no reason for the disapproval;
(c) Since March 1996, management has failed to provide her with an
updated position description (PD);
(d) Starting in September 1996, a co-worker began harassing her and
management failed to stop the harassment;
(e) In October 1996, appellant's supervisor (Supervisor) denied her the
use of earned compensatory time, whereby appellant had to use her sick
and/or annual leave. The Supervisor allowed other employees to use
their earned compensatory time;
(f) In October 1996, the Supervisor belittled her during staff meetings
and on one occasion, yelled at her and pounded on her desk regarding
a tasking;
(g) On February 7, 1997, the Supervisor disapproved her request for
training but approved the same training for the office secretary
(Secretary), a light-skinned, twenty seven year old, African American
female;
(h) On February 1997, appellant was denied the opportunity to learn the
duties of the Specialist's job while the Specialist was on detail to
another organization. However, the Secretary was allowed the opportunity
to learn, fill in and act in the position while the position was vacant;
(i) In March 1997, on the eve of her scheduled departure for a 3-day
trip to attend the "Meet the Fleet" Training Program, the Supervisor
advised appellant that unless she completed certain work on the Standard
Operating Procedure (SOP), due in June 1997, he would not allow her to
attend the training program;
(j) In May 1997, the Supervisor neglected to send E-mails notifying the
HRC staff that appellant was acting in his absence, although he did so
when the Secretary was acting in his absence;
(k) During May 1997, the Supervisor began taking projects away from
appellant and no longer allowed her to earn compensatory time;
(l) On June 27, 1997, the Supervisor informed appellant that the
Secretary would be assuming her position and performing her projects;
(m) On June 30, 1997, the Supervisor informed appellant that her training
requests of June 4, 1997, were disapproved; and
(n) On July 8, 1997, appellant was reassigned to the Human Resources
Center NSSC's, Career Transition Center.
Appellant, with twenty six years of federal government experience, worked
as a staffing assistant in the agency's Human Resource Center (HRC) for
three and a half years. Appellant requested training on several occasions,
as noted in her allegations, and states that the Supervisor responded
"I'll get back to you," to each of her questions concerning the status of
her requests. The Supervisor directed appellant to train the secretary,
who was new to the government.
The Supervisor told appellant on July 6, 1997, she would be transferred
in two days to the Career Transition Center. Appellant informed the
Supervisor she had already worked in the Center, and could neither learn
anything new there, or advance to a higher grade.
In a final agency decision dated February 2, 1998, the agency accepted
allegations (d) and (j) through (n) for processing. The agency dismissed
allegations (a) through (c) and (e) through (i) as untimely because
appellant did not contact an EEO Counselor until July 8, 1997. The agency
stated that although appellant alleged a continuing violation over a
period of more than two years, appellant should have had a reasonable
suspicion she was being discriminated against in February 1997, when
she became aware that a light-skinned, African American secretary was
being treated more favorably.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in ��1614.105, 1614.106 and
1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO counselor within 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 time limit if the appellant
can establish that (s)he was not aware of the time limit, that she did
not know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence (s)he
was prevented by circumstances beyond his or her control from contacting
the EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation
period is triggered. See Ball v. USPS, EEOC Request No. 05880247 (July
6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1) -the predecessor of
29 C.F.R. �1614.105(a)(1)).
It is necessary to distinguish between a complainant who believed he
had been subject to discrimination, and therefore had the obligation to
file promptly or lose his claim, versus a complainant who is unable to
appreciate that he is being discriminated against until s/he has lived
through a series of acts and is thereby able to perceive the overall
discriminatory pattern. Hagan v. Department of Veterans Affairs, EEOC
Request No. 05920709 (January 7, 1993).
The Commission has held that the time requirements for initiating EEO
counseling can be waived as to certain allegations within a complaint when
the complainant alleges a continuing violation. A continuing violation
has been defined as a series of related discriminatory acts, one of which
falls within the time period for contacting an EEO counselor. McGivern
v. USPS, EEOC Request No. 05901150 (December 28, 1990).
The Commission must determine whether the acts appellant alleges are
discriminatory are interrelated by a common nexus or theme. Vissing
v. Nuclear Regulatory Commission, EEOC Request No. 05890308 (June 13,
1989). Should such a nexus exist, appellant will have established
a continuing violation and the agency is obligated to "overlook the
untimeliness of the complaint with respect to some of the acts" challenged
by appellant. Scott v. Clayton, 469 F. Supp. 22, 26 (D.D.C. 1978).
Based on a careful review of the record, the Commission finds that
appellant's allegations (a) through (c) and (e) through (i) state
interrelated acts of discrimination whereby the Supervisor denied
appellant numerous opportunities to qualify for a higher position within
the agency and restricted her ability to improve her standing in HRC.
The Supervisor denied her requests for training, her participation in the
"Meet the Fleet" program, and her chance to learn the Specialist's job.
The Supervisor also belittled appellant in front of co-workers, denied
her use of compensatory leave, and failed to provide her with a position
description. Only when appellant was notified of her transfer did the
pattern of acts designed to result in that transfer become apparent.
Based on the facts available at the time of her notice of transfer,
appellant suspected that the agency's actions, as set forth in the above
allegations, could have been motivated by unlawful discrimination.
Appellant requested an EEO Counselor within 45 days of that date.
Consequently, the Commission finds, due to the continuing nature of the
violations, appellant's allegation are timely.
CONCLUSION
The agency's decision dismissing allegations (a) through (c) and (e)
through (i) is REVERSED and REMANDED to the agency for 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. �1614.410.
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 (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 17, 1999
________________________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations