Ann P. Lindsey, Appellant,v.Aida Alvarez, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionSep 30, 1999
05970895 (E.E.O.C. Sep. 30, 1999)

05970895

09-30-1999

Ann P. Lindsey, Appellant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.


Ann P. Lindsey v. Small Business Administration

05970895

September 30, 1999

Ann P. Lindsey, )

Appellant, )

) Request No. 05970895

v. ) Appeal No. 01966895

) Agency No. 05-96-548

Aida Alvarez, )

Administrator, )

Small Business Administration, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On July 3, 1997, Ann P. Lindsey (appellant) initiated a request to the

Equal Employment Opportunity Commission (the Commission) to reconsider the

decision in Ann P. Lindsey v. Philip Lader, Administrator, Small Business

Administration, EEOC Appeal No. 01966895 (June 3, 1997). EEOC regulations

provide that the Commissioners may, in their discretion, reconsider

any previous Commission decision. 29 C.F.R. �1614.407(a). The party

requesting reconsideration must submit written argument or evidence

which tends to establish one or more of the following three criteria:

new and material evidence is available that was not readily available

when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);

the previous decision involved an erroneous interpretation of law

or regulation, or material fact, or a misapplication of established

policy, 29 C.F.R. �1614.407(c)(2); and the decision is of such

exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3).

ISSUE PRESENTED

The issue presented herein is whether the previous decision properly

affirmed the agency's dismissal of portions of appellant's complaint

for failure to timely contact an EEO Counselor.

BACKGROUND

Appellant contacted an EEO Counselor on January 16, 1996, alleging

discrimination based on sex (female), and age (DOB 3-19-44) when,

following a March 27, 1995, agency announcement that it would transfer

appellant's office from headquarters in Washington, D.C. to Denver,

Colorado, the agency made no effort between March 27, 1995 and February 9,

1996, to place appellant in a vacant position at headquarters; appellant

was notified on September 6, 1995, of a proposal to laterally transfer

her to Denver; and she was involuntarily terminated for failure to accept

transfer on February 9, 1996.

The agency accepted the third allegation for investigation and dismissed

the first and second on the grounds of failure to contact an EEO counselor

in a timely manner. The agency analyzed the allegations as a continuing

violation, and found that allegations (1) and (2) were discrete, isolated

acts which should have triggered a reasonable suspicion of discrimination

at the time each occurred.

On appeal appellant stated that she contacted the EEO office for names

of counselors soon after some of her colleagues were placed. Appellant

did not remember the date. She stated that at the end of the summer

of 1995, she and others were still waiting for placements to be made.

The Commission affirmed the agency's dismissal.

In her request for reconsideration, appellant states that the EEO

officer who gave her names of EEO Counselors in August 1995, failed to

inform her of the contact time requirements for filing EEO complaints.

Appellant also argues that her agency did not post EEO notices and that

the agency failed to provide her with a copy of the Counselor's Report.

The record contains an October 3, 1995, memorandum from an EEO Counselor

to an agency official stating that appellant contacted her<1> claiming

that, based on her performance evaluation rating, she was denied training

and selected to move to Denver. The Counselor notes she advised appellant

that performance is not a basis for discrimination under Title VII. The

Counselor states that because appellant did not allege discrimination as

the reason for her denial of training and selection for transfer, she did

not provide appellant with an aggrieved party's forms for signature.

Appellant contacted the Deputy Administrator (AD) by letter dated November

14, 1995, claiming discrimination. Appellant received a reply December

23, 1995, stating that she must contact an EEO Counselor within 45 days of

an alleged discriminatory event. Appellant argues that after receiving

the reply she was delayed in contacting a Counselor due to the holidays,

snow storms that closed the government, and the government furlough in

early January 1996.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints

of discrimination be brought to the attention of an EEO 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 day limitation period

is triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988).

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.

It is well settled that EEO contact is timely under the above law

where there is intent to initiate the EEO process through the contact.

Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1,

1990).

It is undisputed that appellant contacted an EEO representative sometime

in the late summer or early fall of 1995. Whether appellant intended

to initiate the EEO process via that contact must be evaluated based on

her actions during the period in question.

A review of the facts indicates that appellant's intent was to initiate

the EEO process. Appellant hoped that she would be placed at headquarters

and contacted the EEO office requesting names of EEO counselors as

more and more of her colleagues were placed. Appellant appears to have

hoped for a resolution without filing a complaint while simultaneously

investigating her EEO rights with the intent to file should she not

be placed. Accordingly, the Commission finds that the agency improperly

dismissed appellant's allegations.

CONCLUSION

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that appellant

meets the criterion of 29 C.F.R. �1614.407(c)(2) and it is the decision

of the Commission to grant appellant's request. The previous decision in

EEOC Appeal No. 01966895 (June 3, 1997) and the agency's final decision

are REVERSED. There is no further right of administrative appeal from

a decision of the Commission on a request for reconsideration.

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.

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:

Sept. 30, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat

1 The memorandum does not specify the date that appellant contacted the EEO

office.