01975448
03-26-1999
Sharon L. McNulty, Appellant, v. Richard W. Riley, Secretary, Department of Education, Agency.
Sharon L. McNulty v. Department of Education
01975448
March 26, 1999
Sharon L. McNulty, )
Appellant, )
)
v. ) Appeal No. 01975448
) Agency No. ED-9382020
Richard W. Riley, )
Secretary, )
Department of Education, )
Agency. )
)
DECISION
On July 7, 1997, appellant filed an appeal with this Commission from a
June 3, 1997 final agency decision which dismissed allegations 2-5 of her
complaint. The agency failed to provide a certified mail return receipt
or any other material capable of establishing the date when appellant
received the final agency decision. Accordingly, the Commission presumes
that appellant's appeal was filed within 30 days of appellant's receipt
of the agency's final decision. Accordingly, the appeal is accepted
as timely. See 29 C.F.R. �1614.402(a); EEOC Order No. 960.
In its final decision, the agency identified the dismissed allegations of
appellant's complaint<1> as whether appellant was discriminated against on
the bases of race (African American), sex (female), disability (mental
and physical), and in reprisal (prior EEO activity) when:
2. management continuously impeded appellant's progress to "bridge"
into an Equal Opportunity Specialist (EOS) 360 series when:
a. appellant was required to prepare a document in final in January 1993;
b. appellant was advised by the Branch Chief in April 1993, that while
she was on site, the EOS, to whom appellant was assigned as a reader,
was the team leader and appellant was only to participate;
c. appellant was not given developmental assignments and increased
responsibilities (i.e., to independently investigate complaints);
d. appellant was not mentored guided or provided encouragement leading
toward the EOS position;
e. appellant's responsibilities were diminished by allowing the EOS, to
whom appellant was assigned as a reader, to limit appellant's involvement
and give her menial assignments;
f. after the EOS to whom appellant was assigned became a Technical
Assistant (TA) Coordinator, this change resulted in appellant not
having any direct involvement in conducting interviews, consulting with
complainants, witnesses and school officials in gathering information
and resolving complaints; and
g. the EOS, whom management has permitted to discriminate against
appellant, was allowed to radically change appellant's assignments and
lower her duties and responsibilities.
3. on July 15, 1993, the Director of the Office of Civil Rights
commented during informal counseling to the principal Office Negotiator
that appellant was "paranoid;"
4. at the time of her reassignment to the Equal Opportunity Assistant
(EOA) position, appellant was appointed to the lower grade of GS-361-05,
instead of a higher graded GS-361-06 position, although she possessed
the necessary job qualifications;
5. appellant was sexually harassed in June 1993 when:
a. she overheard two white male employees discussing what they were going
to have for lunch and one male employee named appellant as his lunch;
b. the EOS walked into appellant and touched a private area.
The agency dismissed allegations 2-5 on various grounds: (1)
failure to state a claim pursuant to 29 C.F.R. �1614.107(a); (2)
failure to contact an EEO Counselor in a timely manner, pursuant to 29
C.F.R. �1614.105(a)(1); and (3) for raising a matter not brought to the
attention of an EEO Counselor, pursuant to 29 C.F.R. �1614.107(b).<2>
In a June 2, 1997 letter, the agency informed appellant that it was
accepting allegation 1 of her complaint.
Allegation 2
In allegation 2, appellant alleged that her progress to bridge into
an EOS position was continuously impeded. Allegations 2a and 2b
were dismissed by the agency on the grounds of untimely EEO contact.
Allegations 2c-2g were dismissed by the agency for failure to state a
claim and for untimely EEO contact.
Under the Commission's regulations, an individual must initiate
contact with an EEO counselor within 45 days of the date on which the
alleged discriminatory event occurred. See 29 C.F.R. �1614.105(a)(1).
EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the 45-day limitation period is triggered. See Ball v. U.S. Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation
period is not triggered until a complainant should reasonably suspect
discrimination, but before all the facts that would support a charge of
discrimination have become apparent.
The existence of a continuing violation can extend the 45-day limitations
period for contacting an EEO counselor. 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). If one or more of the interrelated acts falls within the
time period for contacting an EEO Counselor, the complaint is deemed
timely with regard to all acts. Verkennes v. Department of Defense,
EEOC Request No. 05900700 (September 21, 1990).
In determining whether a continuing violation is present, it is important
to consider whether appellant had prior knowledge or suspicion of
discrimination and the effect of this knowledge. See Sabree v. United
Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396
(1st Cir. 1990); Jackson v. Department of the Air Force, EEOC Request
No. 05950780 (June 27, 1997). The Commission has described Sabree
as holding that a plaintiff who believed he or she had been subjected
to discrimination had an obligation to file promptly with the EEOC or
lose the claim, as distinguished from the situation where a plaintiff is
unable to appreciate that he or she is being discriminated against until
he or she experienced 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).
Regarding allegation 2a, appellant alleged in the narrative to her
complaint that on numerous occasions she discussed with the Branch
Chief her displeasure with having to type documents in final and that
this discriminatory action was an ongoing and continuing violation.
Appellant's complaint further reflects that in January 1993, she was
asked to type a document in final and she informed both the EOS and
the Branch Chief that this task was not part of her duties. The record
indicates that appellant contacted an EEO Counselor on June 8, 1993.
Appellant has not disputed that she was aware of the time period for
timely EEO contact. We find further that appellant had a reasonable
suspicion of the alleged discrimination by January 1993. Therefore,
appellant's contact in June 1993, was untimely. Because appellant had
a reasonable suspicion of discrimination in January 1993, the continuing
violation theory is not applicable.
With regard to allegations 2b-2g, we find that the agency's dismissal of
those allegations for untimely EEO contact was also proper. Appellant
alleged that the discrimination regarding her progress into an EOS
position was ongoing. We find, however, based on a review of the record
as a whole, that appellant should have had a reasonable suspicion of
the alleged discrimination more than 45 days prior to her contact with
the EEO Counselor in June 1993. Therefore, allegations 2b-2g do not
constitute a continuing violation. We note also that appellant does
not explain why, despite the alleged continuing actions of the agency in
impeding her progress into an EOS position, she remained unaware of the
alleged discrimination. Even if we were to assume that allegations 2b-2g
constitute a continuing violation, appellant failed to identify any of
the cited examples of discrimination as having occurred within 45 days
of Counselor contact as required under the continuing violation theory.
Although allegation 2b allegedly occurred in April 1993, appellant
failed to establish that the incident occurred within 45 days of her EEO
contact despite the agency's attempt to have appellant specify the date.
Consistent with our discussion, the agency's dismissal of allegation 2
in its entirety was proper and is AFFIRMED.
Allegation 3
The agency dismissed allegation 3 on the ground that the allegation
failed to state a claim because the alleged discriminatory remark was
made during EEO counseling and, also, because the alleged remark was not
included in a personnel file or used in any adverse personnel action.
Upon review, we agree with the agency that allegation 3 failed to state
a claim. In her "EEO Complaint" appellant submitted to the agency in
April 1995, appellant stated therein that during the investigation of
her complaint in ED-9382000, the Director of the Office of Civil Rights
stated that she was "paranoid." We find that because the alleged comment
was made during the investigation of appellant's EEO complaint, the
allegation fails to state a claim. The Commission has held that comments
made during the investigation of a complaint fail to state a claim.
See Blinco v. Department of Treasury, EEOC Request No. 05940194 (May
25, 1994); Calloway v. Department of the Army, EEOC Appeal No. 01943406
(July 18, 1994). There is no evidence that the alleged comments were
made outside of the EEO process or to persons not associated with
the process. See Johnson v. Social Security Administration, EEOC
Request No. 05950288 (June 27, 1996); Parks v. Department of Defense,
EEOC No. 01945626 (January 17, 1995); Zeske v. U.S. Postal Service,
EEOC Appeal No. 01964096 (April 11, 1997). Moreover, the Commission
has consistently held that generally, a remark or comment unaccompanied
by concrete action is not a direct and personal deprivation sufficient
to render an individual aggrieved. See Simon v. U.S. Postal Service,
EEOC Request No. 05900866 (October 3, 1990). Accordingly, the agency's
dismissal of allegation 3 was proper.
Allegation 4
The agency dismissed allegation 4 for failure to contact an EEO Counselor
in a timely manner because the incident occurred in July 1991, and
appellant did not initiate EEO contact until June 8, 1993.
EEOC Regulation 29 C.F.R. �1613.214(a)(1)(i), the regulation in effect
at the time of the alleged discrimination raised in allegation 4,
required that complaints of discrimination should have been brought to the
attention of the Equal Employment Opportunity Counselor within thirty (30)
calendar days of an alleged discriminatory event, the effective date of an
alleged discriminatory personnel action, or the date that the aggrieved
person knew or reasonably should have known of the discriminatory event
or personnel action. EEOC Regulation 29 C.F.R. �1614.105(a)(1) extended
the time limit for contacting an EEO Counselor to forty-five (45) days
for actions occurring on or after October 1, 1992, the effective date
of the new regulations.
As noted earlier herein, appellant does not dispute that she was aware
of the time limits and that she did not contact an EEO Counselor until
June 8, 1993. The narrative attached to appellant's complaint and a
July 20, 1993 EEO Pre-Complaint Program Report Form reflect that in July
1991, appellant was assigned to the position of EOA, at a grade level 5.
Accordingly, when appellant initiated Counselor contact on June 8, 1993,
almost two years after the assignment at that grade level, her contact
was untimely and appellant has not provided justification sufficient
to extend the time limit. See Baldwin County Welcome Center v. Brown,
466 U.S. 147, 151 (1984) (per curiam) ("One who fails to act diligently
cannot invoke equitable principles to excuse lack of diligence"); Rys
v. U.S. Postal Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find
succor in equity a Title VII plaintiff must have diligently pursued
her claim"). Moreover, allegation 4 does not constitute a continuing
violation because the assignment to grade level 5 was a separate and
discrete event which should have given rise to a reasonable suspicion
on the part of appellant that she was being discriminated against.
Incidents that are sufficiently distinct to trigger the running of the
limitations period do not constitute continuing violations. See, e.g.,
Miller v. Shawmut Bank, 726 F. Supp. 337, 341 (D. Mass. 1989); Cogen
v. Milton Bradley Co./Hasbro Inc., 449 Empl. Prac. Dec. (CCH) �38,894
(D. Mass. 1989).<3>
Allegation 5
The agency dismissed allegation 5 on the grounds that appellant did not
raise the matter during EEO counseling.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds to or
clarifies the original complaint and could have reasonably been expected
to grow out of the original complaint during the investigation. See
Scher v. U.S. Postal Service, EEOC Request No. 05940702 (May 30, 1995);
Calhoun v. U.S. Postal Service, EEOC Request No. 05891068 (March 8,
1990); Webber v. Department of Health and Human Services, EEOC Appeal
No. 01900902 (February 28, 1990).
In the narrative to her complaint, which contains allegation 5, appellant
made a notation thereon that she submitted the narrative previously
in June 1993. The record reveals that the final interview, ending the
informal process, was not conducted until July 15, 1993.
Moreover, we find that allegation 5 could reasonably have been expected
to grow out of the allegations raised with the EEO Counselor during the
agency's investigation of allegation 1. Allegation 1, as identified
in the agency's acceptance letter, reflects that appellant alleged that
she was "continuously harassed" by the EOS, to whom she was assigned as
a reader. The allegation identifies 11 incidents of alleged harassment,
some of which allegedly occurred in December 1992 and April, May, and June
1993, and all involving the EOS. The narrative to appellant's complaint
regarding allegation 5a reflects that appellant alleged that in June 1993,
a male employee who regularly accompanied the EOS to lunch walked into
the office. The EOS asked the employee what the two were going to eat
for lunch. The employee replied appellant. Regarding allegation 5b,
the complaint reveals that the EOS walked into appellant in June 1993,
as she was walking towards the door and he allegedly touched a "private
area" of her body. Allegation 5a and 5b both involve the EOS, the same
person whom appellant alleged in allegation 1 non-sexually harassed her.
In addition, the alleged sexual harassment allegedly occurred in June
1993, the same month during which appellant identified other incidents
of alleged non-sexual harassment by the EOS.
Accordingly, we find that allegation 5 was raised during EEO counseling or
is like or related to a matter raised. Therefore, the agency's dismissal
of allegation 5 was improper.
Consistent with our discussion herein, the agency's dismissal
of allegations 2, 3, and 4 is AFFIRMED. The agency's dismissal of
allegation 5 is REVERSED and allegation 5 is REMANDED to the agency for
further processing.
ORDER
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:
March 26, 1999
DATE Ronnie Blumenthal, Director
1The record contains complaint allegations, dated July 20, 1993.
These allegations were resubmitted by appellant to the agency at its
request in September 1993. The record also reveals that in April 1995,
appellant forwarded to the agency a document entitled "EEO Complaint"
which contains several allegations.
2The Commission notes our general concern that the final agency decision
lacks cohesion and clarity. For example, it is unclear in the decision
what are the primary grounds, as opposed to the alternative grounds,
for dismissal of the allegations.
3Here, appellant is not alleging that she was being asked to perform
higher level duties and not being compensated at the higher level.
See Murphy v. Department of the Army, EEOC Appeal No. 01975532 (April 24,
1998)(not being compensated at a higher level was a recurring violation
and EEO contact was timely); Wintner v. Department of Housing and Urban
Development, EEOC Appeal No. 01962705 (December 5, 1996).