JUDITH H. TOOLE, APPELLANT,
v.
GILBERT CASELLAS, CHAIRMAN, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, AGENCY.

Appeal No. 
01964702
Agency No. 0-9500085-PX

May 22, 1997

DECISION

The appellant timely filed an appeal with this Commission [FN1] from a final decision, dated April 24, 1996, which the agency issued pursuant to EEOC Regulation 29 C.F.R. §1614.107(b). The Commission accepts the appellant's appeal in accordance with EEOC Order No. 960, as amended.

ISSUES PRESENTED

The issues presented on appeal are whether the agency properly defined the appellant's complaint and then dismissed an allegation based on the appellant's untimely EEOC counselor contact.

BACKGROUND

According to the final agency decision, the appellant alleged in her September 26, 1995 complaint that the agency discriminated against her based on her age (DOB: 10/2/42) and in reprisal for a prior EEO complaint when she was subject to a pattern of harassment (nonsexual). The decision indicated that the appellant specifically alleged that the agency discriminated against her when in June 1994, the agency hired Employee A at the GS-13 level and assigned her to an office the agency had promised to the appellant; in February or March 1995, the agency required the appellant to move from the office for which the appellant had sought, to a remote location away from the rest of the hearing unit; the agency removed the appellant from the national working group of administrative judges, with whom she had been working since March 1995, and replaced her with Employee A; in May 1995, the agency redirected conference calls from headquarters from her telephone to that of her supervisor, the Regional Attorney; and on July 25, 1995, while the appellant was on sick leave, the agency appointed Employee A Lead Administrative Judge.

The final agency decision accepted for investigation the following issues:
Harassing incidents starting in February or March 1995 when [the appellant was] required to change [her] office space; in May conference calls were redirected to the supervisor of the hearings unit; and on July 25, 1995, [the appellant was] not chosen as Lead Administrative Judge while [the appellant was] out on sick leave.

The final agency decision dismissed the promised office space allegation pursuant to 29 C.F.R. §1614.107(b) based on the appellant's untimely EEO counselor contact. The decision indicated that although the appellant was aware of the allegedly discriminatory nature of the promised office space allocation when it arose, she did not timely raise the matter with an EEO counselor even though she discussed another matter with an EEO counselor at that time. The decision dismissed the national working group allegation pursuant to 29 C.F.R. §1614.107(a) because the appellant had presented the same matter in a prior EEO complaint, agency no. 0-9500076-PX.

On appeal, the appellant challenges the dismissal of the promised office space allegation which the appellant contends was merely the first in a series of harassing and discriminatory incidents that culminated in the appointment of a younger person who had not engaged in protected EEO activity as Lead Administrative Judge in July 1995. The appellant contends that the allegation should be deemed timely under the continuing violation theory. The appellant further objects to the agency's failure to indicate that the dismissed allegations should be considered as background evidence even if they cannot be considered as separate issues of discrimination.

In response, the agency acknowledges that the untimely issue may be relevant background evidence for the accepted issues. However, the agency contends that no continuing violation exists because there is no nexus between the June 1994 office space allegation and the accepted allegations. In support of this contention, the agency submits a copy of a declaration from the appellant wherein she indicates that after she protested the assignment of room 334 to Employee A in June 1994, the agency allowed her to move into that office. The appellant also represents that in October 1994, after her informal complaint of wage discrimination in favor of Employee A, the agency promoted her to the GS-13 level. The appellant further indicates in her declaration that the continuous preferential treatment given the younger administrative judge, the more recent instances of which were also in retaliation for her use of the EEO process, had caused her emotional distress, adversely affected her reputation, and created an intolerable working environment.

ANALYSIS AND FINDINGS

As a threshold issue, the Commission finds that the agency narrowed the definition of the appellant's complaint as alleging only discrete harassing incidents. In her complaint and on appeal, the appellant clearly indicates that she is alleging that based on her age and in retaliation for her EEO activity, the agency repeatedly has treated her less favorably than Employee A and subjected her to a hostile work environment. Therefore, the Commission modifies the agency's definition of the appellant's complaint allegations by adding a hostile work environment claim.

As to the appellant's specific allegations of disparate treatment, the Commission finds that the appellant's proposed office space allegation does not state a separate allegation of disparate treatment because, allegedly, the appellant, not Employee A, was granted the office space at issue. However, the agency's alleged proposal to give the promised space to Employee A, with its concomitant delay in granting the space to the appellant, should be investigated as part of the appellant's hostile work environment claim. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 4-6 (to determine whether a work environment is objectively hostile or abusive, the trier of fact must consider all of the circumstances). Similarly, the Commission finds that the agency does not need to investigate the appellant's national working group allegation as a separate allegation of disparate treatment since the appellant acknowledges in her declaration that she has filed a prior complaint on that issue and does not challenge the dismissal on appeal. However, the Commission advises the agency that when it investigates the remanded hostile work environment claim, it should include in the record all relevant evidence pertaining to the national working group allegation, the already resolved disparate pay allegation, and other hostile or abusive occurrences, if any, which occurred during the period of time at issue in this complaint. Moreover, to the extent possible, on remand the agency should consolidate for processing any other pending complaints by the appellant which contain harassment allegations. See Samuel T. Cobb, III v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997) (agencies should consolidate complaints of discrimination filed by an individual complainant which raise allegations of harassing incidents or allegedly derogatory statements or remarks in order to conserve limited administrative resources and to facilitate the identification and elimination of discriminatory practices).

CONCLUSION

For the above-stated reasons, it is the decision of the Equal Employment Opportunity Commission to MODIFY the agency's definition of the appellant's complaint allegations, and to remand the complaint to the agency for investigation.

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 acknowledgement 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:

Frances M. Hart
Executive Officer
Executive Secretariat

FN1. In the instant matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent agency and the appellate authority. The Commission's appellate function is separate from and independent of the office responsible for processing and resolving in-house discrimination complaints. Hereinafter, the appellate authority will be referred to as the "Commission" and the term "agency" will be used when referring to the EEOC in its capacity as the respondent. Chairman Gilbert Casellas has recused himself from participation in this decision.