0120110271
07-22-2011
Angel T. McShan, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Angel T. McShan,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110271
Agency No. ARIMCOMHQ10AUG03837
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 7, 2010, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed, in part, pursuant to 29 C.F.R. § 1614.107(a)(2),
for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Education Services Specialist, GS-12/06, at the Agency’s White Sands
Missile Range in New Mexico. On September 20, 2010, Complainant filed a
formal complaint alleging that the Agency subjected her to discrimination
on the bases of race (African-American), sex (female), color (black), and
in reprisal for prior protected EEO activity arising under Title VII when:
1. From March 2008 through October 2008 Complainant was subjected to
three AR 15-6 investigations1;
2. On July 21, 2008, Complainant received a Letter of Reprimand;
3. In February 2008 Complainant’s job offer at U.S. Army Garrison
(USAG) Fort Gordon was rescinded after an individual notified a
management official at USAG Fort Gordon that Complainant was under AR
15-6 investigation;
4. On April 3, 2009, Complainant’s job offer at USAG Benelux, Belgium
was rescinded after an individual notified a management official at USAG
Benelux that Complainant was under investigation;
5. On March 15, 2010, Complainant received a Notice of Proposed Removal;
and
6. On June 26, 2010, Complainant received a Notice of Decision suspending
her for three days.
The Agency’s final decision dismissed claims 1 through 4 pursuant to
29 C.F.R. § 1614.107(a)(1) as restating claims previously brought
by Complainant. In that prior complaint, on May 20, 2010, an EEOC
Administrative Judge (AJ) issued a finding of no discrimination.
Specifically, the AJ found: 1) there was no evidence that the
investigations were motivated by animus; 2) Complainant failed to prove
the Letter of Reprimand was unwarranted; and 3) there was insufficient
evidence to show that the Agency discriminatorily informed Fort Gordon
and USAG Benelux about Complainant’s investigations. The Agency
subsequently issued a final order implementing the AJ’s findings, which
was affirmed by the Commission on appeal. Angel T. McShan v. Dep’t
of the Army, EEOC Appeal No. 0120103501 (Feb. 10, 2011).
The Agency’s final decision dismissed claims 5 and 6 for untimely
EEO contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency stated
Complainant initiated EEO contact on August 11, 2010, which was more than
the permitted 45 days after Complainant received the Notice of Decision
on June 26, 2010.
CONTENTIONS ON APPEAL
Complainant contends on appeal that claims 1 through 4 were included
merely as “supporting information that shows the pervasiveness of the
ongoing harassment.” Complainant also contends that her EEO contact
was timely in regards to claims 5 and 6. Complainant avers that the
discriminatory event which triggered the start of the 45-day clock for EEO
contact occurred on July 19, 2010, the effective date of her suspension.
In the alternative, Complainant argues that the start of the 45-day clock
should be July 7, 2010, when she received clarification regarding the
“convoluted and inaccurate” Notice of Decision dated June 26, 2010.
Additionally, on appeal Complainant also claims that she was discriminated
against on the basis of her national origin (African-American).
The Agency requests that its dismissal be affirmed. The Agency contends
that claims 1 through 4 were previously heard and adjudicated via an
Administrative Judge hearing. In regards to claims 5 and 6, the Agency
avers that the 45-day clock began when Complainant could reasonably
suspect discrimination upon her receipt of the Notice of Decision on
June 26, 2010.
ANALYSIS AND FINDINGS
Claims 1 through 4
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) requires the dismissal of a
complaint that states an identical claim that is pending before or has
been decided by the agency or Commission. It has long been established
that “identical” does not mean “similar.” The Commission
has consistently held that in order for a complaint to be dismissed
as identical, the elements of the complaint must be identical to the
elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Dep’t of the Air Force, EEOC Appeal No 01955890 (Apr. 5,
1996), rev'd on other grounds, EEOC Request No. 05960524 (Apr. 24,
1997). A review of the record and the decision issued in EEOC Appeal
No. 0120103501 shows that claims 1 through 4 are identical to the claims
addressed in the previous case. See McShan v. Dep’t of the Army, EEOC
Appeal No. 0120103501 (Feb. 10, 2011). Given that claims 1 through 4
were previously decided, in the present case we AFFIRM the Agency’s
dismissal of these specific claims.
Claim 5
EEOC Regulation 29 C.F.R. § 1614.107(a)(5) provides that an agency shall
dismiss any portion of a complaint that alleges “that a proposal to
take a personnel action or other preliminary step to taking a personnel
action, is discriminatory.” Hopkins v. Small Business Admin., EEOC
Appeal Nos. 0120092072, 0120100622 (May 3, 2011). The Commission
has held that when a complaint is filed on a proposed action and the
agency proceeds with the action during the pendency of the complaint,
a “merger” between the proposal and the action results. See Siegel
v. Dep’t of Veterans Affairs, EEOC Request No. 05960568 (Oct. 9, 1997);
Tomei v. Dep’t of Defense, EEOC Appeal No. 02A20011 (Dec. 6, 2002);
Cruz-Packer v. Dep’t of Homeland Security, EEOC Appeal No. 01A51004
(March 2, 2006); Johnson v. U.S. Postal Serv., EEOC Appeal No. 0120103434
(Jan. 27, 2011). Likewise, a proposed removal that never culminated in
an actual removal, but was instead reduced to a suspension, triggers the
merger of the proposed removal claim into the actual action claim (i.e.,
the suspension). Willis v. Dep’t of Veterans Affairs, EEOC Appeal
No. 01A22778 (Apr. 9, 2003). Upon the merger of claims, the specific
claim regarding the proposed action is dismissed and subsumed into the
claim regarding the actual action. See Taylor v. U.S. Postal Serv.,
EEOC Appeal 01975649 (Sept. 18, 1998).
In the present case, the Notice of Decision dated June 26, 2010,
states that “the proposed removal is mitigated to a three calendar
day suspension.” Ultimately, Complainant was suspended, not removed.
Thus, Complainant’s claim 5 regarding her Notice of Proposed Removal
dated March 15, 2010, should be dismissed pursuant to 29 C.F.R. §
1614.107(a)(5) and merged into claim 6.
Claim 6
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints
of discrimination 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 Howard
v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999).
Thus, the time limitation is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent. McLouglin v. Dep’t of the
Treasury, EEOC Request No. 05A01093 (Apr.l 24, 2003).
EEOC regulation 29 C.F.R. § 1614.105(a)(1) also expressly differentiates
a personnel action from other types of alleged discriminatory acts.
For a personnel action, the 45-day clock starts on the effective date
of the action. 29 C.F.R. § 1614.105(a)(1). Given that a suspension
is considered a personnel action, Complainant’s 45-day clock began
on July 19, 2010, the effective date of her suspension. See Oursler
v. U.S. Postal Serv., EEOC Appeal No. 0120083978 (Apr. 29, 2010)
(holding that the start date to the 45-day EEO contact time limit is
not the receipt date of the Notice of Removal, but instead the effective
date of that notice); Horn v. Dep’t of Homeland Security, EEOC Appeal
No. 0120093414 (May 13, 2011) (noting the start date for the 45-day
EEO contact time limit is not the date complainant received notice of
a salary offset waiver, but instead the effective date of that waiver);
Belcher v. U.S. Postal Serv., EEOC Appeal No. 01920463 (Feb. 18, 1992)
(stating a suspension is a personnel action); Runyon v. U.S. Postal
Serv., EEOC Appeal No. 01934189 (Nov. 9, 1993) (stating a suspension is a
personnel action); but see Williams v. U.S. Postal Service, EEOC Appeal
No. 0120090683 (May 6, 2010) (stating the date of the discriminatory
event is the date of the Notice of Decision when that notice upholds
an earlier termination). Thus, in the present case when Complainant
initiated EEO Counselor contact on August 11, 2010, she was within the
permitted 45-day window. Therefore, we find that the Agency improperly
dismissed claim 6.
CONCLUSION
The record shows that claims 1 through 4 were previously decided in a
prior complaint. Accordingly, we AFFIRM the Agency’s final decision
regarding claims 1 through 4. We AFFIRM the Agency’s dismissal of
claim 5, but for differing reasons. We dismiss claim 5 as a proposal to
take an action and merge the claim with claim 6. Finally, we REVERSE the
Agency’s final decision regarding claim 6 and we REMAND this matter
to the Agency for further processing in accordance with the ORDER below. 2
ORDER (E0610)
The Agency is ordered to process remanded claim 6 and investigate the
alleged discriminatory bases of race (African-American), sex (Female),
color (Black), national origin (African-American), and reprisal for
prior protected EEO activity in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received
the remanded claims within thirty (30) calendar days of the date this
decision becomes final. The Agency shall issue to Complainant a copy
of the investigative file and also shall notify Complainant 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 Complainant requests a final decision without
a hearing, the Agency shall issue a final decision within sixty (60)
days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant 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 (K0610)
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 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant 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. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
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. §§ 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency’s final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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.
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 22, 2011
Date
1 An “AR 15-6 investigation” is a fact-finding investigation initiated
pursuant to Army Regulation 15-6.
2 The Commission notes that on appeal Complainant has added the basis
of national origin (African-American). While a complainant typically
may not add new bases of discrimination for the first time on appeal,
because Complainant’s complaint has not yet been investigated, she
may add the basis of national origin on remand.
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0120110271
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110271