Carol Shores, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy Agency.

Equal Employment Opportunity CommissionOct 18, 1999
01983323 (E.E.O.C. Oct. 18, 1999)

01983323

10-18-1999

Carol Shores, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy Agency.


Carol Shores, )

Appellant, )

) Appeal No. 01983323

v. ) Agency No. 9867001008

)

Richard J. Danzig, )

Secretary, )

Department of the Navy )

Agency. )

)

DECISION

Appellant filed an appeal with the Commission from a notice of partial

acceptance/dismissal of complaint of the agency concerning her complaint

of unlawful employment discrimination in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.

The agency decision is dated January 22, 1998, but was not received by

appellant until March 21, 1998. The appeal was received in the Office of

Federal Operations on March 27, 1997. Accordingly, the appeal is timely

(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC

Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly partially dismissed

appellant's complaint on the grounds that appellant failed to seek EEO

counseling in a timely fashion.

BACKGROUND

On December 22, 1997, appellant filed an EEO complaint alleging that she

was discriminated against based on her sex (female), age (D.O.B. 9/11/40)

and reprisal (prior EEO activity) when: (1) she received a Letter of

Reprimand (LR) on July 23 1997; (2) she received another LR on July 28,

1997; (3) she received a Notice of Unsatisfactory Performance Appraisal

(Notice) on July 31, 1997; and (4) she was subjected to ongoing and

continuous acts of discrimination. The agency dismissed allegations

(2) and (4) as untimely on the grounds that the EEO counselor's report

indicated that appellant initially sought counseling on allegation

(2) on October 31, 1997, which is beyond the time limits set by the

Regulations. The agency also dismissed appellant's allegation (4),

of ongoing and continuing discrimination as untimely, as appellant made

this allegation for the first time on December 22, 1997, but alleged no

acts of discrimination past July 28 and 31, 1997.

Appellant timely filed this appeal to the Commission, stating that

the agency violated its regulations requiring EEO counseling and a

final interview to be conducted within thirty days of her request for

counseling, and that she provided a letter to the EEO Counselor on August

2, 1997 alleging a pattern of harassment due to reprisal.

ANALYSIS AND FINDINGS

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 matter alleged

to be discriminatory or, in the case of personnel action, within 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 limitation period is triggered. See Ball

v. USPS, 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. Furthermore, EEOC Regulation

29 C.F.R. � 1614.604(c) provides that the time limits in this part are

subject to waiver, estoppel and equitable tolling.

Here, appellant is claiming that she timely contacted an EEO counselor

regarding her allegations and the counselor violated agency regulations by

not conducting the investigation within thirty days. The Commission finds

that the agency improperly found that appellant failed to contact an EEO

Counselor in a timely manner with regard to allegation (2). The record

submitted by the agency establishes that appellant contacted an EEO

Counselor on August 8, 1997, but did not meet with an EEO Counselor until

October 31, 1997, due to a backlog of complaints. During the October 31,

1997 meeting, appellant referred only to the July 23, 1997 LR. There is

a dispute between the parties as to whether appellant waived her right to

meet with the EEO Counselor within 30 days after the alleged incidents of

discrimination. Nevertheless, there is no statutory requirement that an

initial request for counseling contain all of the allegations that will

be discussed at the initial interview with the EEO Counselor. As such,

we find that appellant did contact the EEO Counselor with a request

for counseling within 45 days of the alleged discriminatory incidents.

We find that any resolution of the factual dispute regarding appellant's

waiver of the time limits for the initial interview is more appropriate

during an investigation of the merits of the allegation. Accordingly,

allegation (2) is REMANDED for further processing in accordance with

the ORDER below.

With regard to allegation (3), the Notice received on July 31, 1997, we

note that the agency did not address this issue in its final decision. The

issue is considered dismissed by the agency. Harris v. United States

Postal Service, EEOC Appeal No. 01983463 (May 18, 1999). Allegation (3)

was raised by appellant in his formal complaint. We find that if the

agency believes that dismissal of allegation (3) is appropriate, it

would be proper for the agency to issue a new final decision addressing

allegation (3). Accordingly, allegation (3) is REMANDED to the agency

for further processing in accordance with the ORDER below. Harris, supra.

Regarding appellant's allegation of ongoing and continuing violations,

we find that the dismissed allegations involve isolated acts which should

have triggered appellant's awareness of any alleged discrimination.

As such, appellant had prior knowledge or a reasonable suspicion of

discrimination within the mandated time frame, thereby rendering the

continuing violation doctrine inapplicable. Jackson v. Department of

the Air Force, EEOC Request No. 05950780 (June 27, 1997)(holding that a

relevant factor in determining whether a continuing violation has been

stated is when complainant reasonably suspected discrimination). We

further find that the acts by management were completed acts at the time

they occurred, such that they do not constitute a continuing violation.

In addition, we note that ongoing and continuous discrimination is

a legal theory, rather than a separate allegation, and appellant has

provided no evidence which establishes that allegations (1)-(3) were

part of an ongoing and continuous pattern of discrimination. We further

find appellant has provided no facts beyond her assertion in the formal

complaint that she was subjected to ongoing and continuous discrimination

following receipt of the Notice on July 31, 1997. Accordingly, it is

our holding that the agency properly dismissed appellant's allegation

(4) as violative of the time restrictions contained in 29 C.F.R. �

1614.105(a)(1).

CONCLUSION

Accordingly, the agency's decision to dismiss the allegation (4)

of appellant's complaint for failure to contact an EEO Counselor in

a timely manner was proper and is AFFIRMED. The agency's decision to

dismiss allegations (2) and (3) was improper and is REVERSED. Allegations

(2) and (3) are REMANDED to the agency for further processing.

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 the

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 the

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 (S0993)

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 the 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 the 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 the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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:

October 18, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations