On February 13, 2006, in Ryan v. Veneman, S.D. Miss., No. 1:04cv31 WJG-JMR, the U.S. District Court for the Southern District of Mississippi partially denied the Department of Agriculture’s (USDA) motion for summary judgment, holding that the employee established genuine issues of material fact concerning whether her claims constituted a continuing violation and were based on her sex.

Courts, as well as the EEOC, employ the continuing violation theory allowing recovery for discriminatory actions causing a hostile work environment when at least one action occurs within the 45 day period for EEO contact. Pursuant to 29 C.F.R. § 1614.105(a)(1), federal employees “who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap” are required to contact an EEO counselor within 45 days of the date of the matter alleged to be discriminatory.

However, in cases involving a long series of relatively minor acts (as opposed to discrete actions such as removals, non-selections, demotions, etc.) it is not always clear if and when the clock should start running. The continuing violation theory, therefore, allows a harassed employee to reach back to obtain relief for harassment that occurred prior to the 45-day period by linking it together with timely harassment as one continuous discriminatory practice that took place within the limitations period. The theory is “premised on the equitable notion that the statute of limitations should not begin to run until a reasonable person would be aware that his or her rights had been violated.”

In Ryan, the harassment arose after a USDA employee ended a consensual relationship with her former supervisor in early 1997, according to the decision. The supervisor attempted to “woo” her back, asking her to hug or kiss him, and then became angry, making derogatory comments about her and her work, when he was rebuffed. In August 1997, the supervisor became aggressive and started yelling, slamming doors, cursing at her, and forcing physical contact. The employee complained about his behavior, and the supervisor was admonished and instructed to stay away from her. In October 2000, the supervisor was issued a written reprimand after falsely accusing the employee of poor performance and misconduct. In April 2001, the supervisor made another false misconduct accusation. On October 3, 2001, the employee contacted an EEO counselor.

The USDA argued that any harassment that occurred prior to 45 days before October 3, 2001, is time barred. The USDA also claimed the case should be dismissed because there is no evidence that any contact of a sexual nature occurred after December 1997 and that the performance and conduct “criticisms” were not based on sex. The employee asserted that she need not establish that all of the acts fall within the requisite time period because the alleged discrimination constituted a series of related acts so that the alleged discrimination became a continuing violation.

The court held that to determine if the employer’s conduct constitutes a continuing violation, the court must review “the facts and context of each particular case,” including whether the acts involved the same type of discrimination and are related and recurring rather than isolated incidents. It emphasized that the continuing violation theory requires the same type of discriminatory acts to occur both inside and outside the limitations period. Viewing the facts in the light most favorable to the plaintiff, the court found that the employee established a question of fact regarding whether the discriminatory acts were so pervasive and ongoing to constitute a continuing violation. Further, the court held that the type of harassment the employee alleged “goes beyond the acts of a disappointed suitor and reflects possible gender discrimination.” The court concluded that it was appropriate for a jury to decide whether the supervisor’s conduct was sufficiently severe or pervasive to create a hostile work environment.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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