0120152471
01-08-2016
Carolann P.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Carolann P.,1
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120152471
Agency No. 54201500132
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated July 1, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physical Scientist at the Agency's Weather Forecast Office, Office of Science and Technology, National Oceanic and Atmospheric Administration facility in Silver Spring, Maryland. On May 19, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when:
1. On or about January 24, 2015, Complainant was denied training.
The Agency dismissed the claim but the reasons for the dismissal are not fully clear. In the body of FAD, the Agency argues that Complainant's EEO Counselor contact was untimely, but the FAD's Conclusion states that the claim is being dismissed for failure to state a claim, which is a different argument.
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 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.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
In its FAD, the Agency found that Complainant contacted the EEO Counselor on March 13, 2015, and further found that the most recent incident that could be construed as a denial of training consisted of an email to Complainant from her supervisor, dated January 24, 2015, and that other incidents mentioned by Complainant predated that date. The Agency noted that "Complainant has failed to identify any training she has been denied within 45 calendar days of contacting the EEO Counselor, and as such, we find that this complaint is appropriate for dismissal for untimely EEO Counselor contact." FAD, p. 6.
On appeal, however, Complainant argues that she first contacted the EEO Counselor on March 6, 2015, and not March 13. Complainant has submitted a copy of an email dated March 6, 2015 that she sent to the Agency's Civil Rights Office wherein she requests counseling "regarding a complaint of impact [sic]." The subject matter header of the email states "request to meet with a counselor." We note that in the Counselor's report, next to the header "Date of Initial Contact with EEO Office" the Counselor states: "03/06/2015 (info only) and on 03/13/2015 (requested EEO counseling)." Counselor's Report.
Following a review of the record we find that the Agency erred in dismissing the complaint for untimely Counselor contact. While the Commission has held that EEO counselor contact does not occur until an individual signals her intent to begin the EEO process, Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996), we find that Complainant's March 6 email signals just such an intent. We note that there is no requirement that a complainant use explicit language for her contact to officially be considered EEO Counselor contact and we find that Complainant's statement that the intended meeting was "regarding a complaint of [disparate] impact" sufficient to signal her intent to initiate an EEO complaint. Because March 6, 2015 is less than 45 days from January 24, 2015 we find that Complainant's EEO Counselor contact was not untimely with regards to the January 24 denial. Any earlier denials, however, are untimely and may be used as background evidence only. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
On appeal, the Agency argues that Complainant's EEO Counselor contact should be considered untimely because Complainant mentioned additional alleged denials of training that predated the most recent denial, and therefore she should have suspected discrimination at an earlier date. Such an argument, however, does not apply to the denial that allegedly occurred on January 24, 2015, since it was not until her most recent request was denied that she could have reasonably suspected that that particular denial was discriminatory. Indeed, were we to adopt the Agency's argument, a complainant who reasonably suspected he or she was being discriminated against by management would have to file a complaint regarding future acts of discrimination by management to be considered timely, a clear impossibility.
The Agency next argues that the January 24, 2015 email from her supervisor:
does not reflect that he denied Complainant's request for additional training; rather, he requested additional information and discussion pertaining to the request. (citation to the record omitted). The documents filed regarding this Appeal clearly demonstrate that the last training opportunity Complainant was actually denied occurred on or about August 19, 2014, over six months before Complainant's first communication with the Agency [EEO Office].
Agency's Appeal Brief, p. 10.
Such an argument, however, addresses the merits of Complainant's complaint without a proper investigation as required by the regulations. The Agency's articulated reason for the action in dispute - that Complainant was not in fact denied training - goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether she has stated a justiciable claim under Title VII. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991).
Finally, with regard to the FAD's conclusion that Complainant fails to state a claim, we note that the Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). By alleging that she was denied training, Complainant has alleged a present harm or loss and states a valid claim.
CONCLUSION
Complainant's EEO Counselor contact was timely and her complaint states a valid claim of discrimination. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the final order and REMAND the claim for further processing in according with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims 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 (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (R0610)
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 within ninety (90) calendar days from the date that you receive this decision. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 8, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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