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