Cheryl M. Jamieson, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJul 13, 2000
01992508 (E.E.O.C. Jul. 13, 2000)

01992508

07-13-2000

Cheryl M. Jamieson, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Cheryl M. Jamieson v. Department of the Army

01992508

July 13, 2000

Cheryl M. Jamieson, )

Complainant, )

)

v. ) Appeal No. 01992508

) Agency No. BPAQF09811I0010

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

In her formal EEO complaint, complainant alleged that:

(1) she was denied the opportunity to maintain a GS-9 grade level and

to continue a status with potential for advancement;

(2) she was assigned to a position five grade levels below the GS-9

Illustrator position at the time the reduction in force (RIF) was

announced;

(3) she was denied reassignment to a position as an Illustrator GS-9 VIS,

dealing with graphic design and illustrative work;

(4) she was denied a Warehouse/Supply Clerk, GS-6, position;

(5) she was denied another Illustrator position which was filled

non-competitively; and

(6) she believed that if correct procedures were applied, she would

have been placed by a retention register.

In its final decision of January 5, 1999, the agency dismissed the

complaint for untimely EEO contact finding that all of the cited incidents

occurred in August of 1997, and complainant did not initiate EEO contact

until June 10, 1998. Furthermore, the agency dismissed claims (3) and

(5) for stating the same claims as previously raised in complainant's

prior complaint, Agency No. BPARFO9706H0240.<1>

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

discrimination should 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. Department of the Navy,

EEOC Request No. 05970852 (February 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.

On appeal, complainant indicates that she timely contacted an EEO

Counselor with regard to claim (4) after she became aware of the alleged

selection for the Warehouse/Supply Clerk, GS-6 position. The agency

asserts on appeal that complainant knew of discrimination as early as

September 15, 1997, when she made an inquiry about someone with lower

retention rate being placed in the GS-6 position; however, the EEO

Counselor's Report indicates that the alleged selection did not occur

until June 1, 1998, when the subject position was awarded to an identified

agency employee. Thus, the Commission finds that complainant's June 10,

1998 EEO contact with regard to the alleged selection was timely.

With regard to claims (1)-(3) and (5)-(6), while the agency contends

that all the cited incidents occurred in August 1997, there is no

evidence of record to substantiate this contention. Furthermore, we

note that the agency argues, in its decision and again in response to

the appeal, that complainant previously raised claims (3) and (5) in

Agency No. BPARFO9706H0240, which was filed on May 22, 1997, suggesting

that claims (3) and (5) may have occurred prior to August 1997. Where,

as here, there is an issue of timeliness, "[a]n agency always bears

the burden of obtaining sufficient information to support a reasoned

determination as to timeliness." Guy v. Department of Energy, EEOC

Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of

Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in

Ericson v. Department of the Army, EEOC Request No. 05920623 (January

14, 1993), the Commission stated that the agency has the burden

of providing evidence and/or proof to support its final decisions.

See Gens v. Department of Defense, EEOC Request No. 05910837 (January 31,

1992). We find that the record is insufficient to permit a timeliness

determination regarding claims (1)-(3) and (5)-(6). Accordingly,

the agency's dismissal of claims (1)-(3) and (5)-(6) for untimely EEO

contact is VACATED.

Volume 64f Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

referred to as 29 C.F.R. �1614.107(a)(1)) provides that the agency

shall dismiss a claim that states the same claim that is pending before

or has been decided by the agency. With regard to claims (3) and (5),

the agency dismissed the subject claims for stating the same claims in

complainant's previous complaint, Agency No. BPARFO9706H0240, which

was filed on May 22, 1997; however, the agency fails to submit any

evidence to support such a determination, i.e., by providing a copy of

the previous complaint and/or any relevant documentation thereto. Thus,

we find that the agency's dismissal of the subject claims for stating

the same matters in complainant's previous complaint was improper.

Accordingly, the agency's decision dismissing claim (4) is hereby

AFFIRMED. The agency's decision dismissing claims (1)-(3) and (5)-(6)

is hereby VACATED and the subject claims are REMANDED to the agency

for further processing in accordance with this decision and applicable

regulations.

ORDER

The agency is ORDERED to take the following actions:

Within fifteen (15) calendar days of the date this decision becomes final,

the agency shall notify complainant that she has fifteen (15) calendar

days from the date of receipt of the notice within which to provide

the agency with the dates of the incidents raised in claims (1)-(3) and

(5)-(6), and/or the dates she became aware of the alleged discrimination

with regard to those incidents, as well as all documentation/evidence

in support of those dates;

Within forty-five (45) calendar days of the date this decision becomes

final, the agency shall issue a new final decision regarding claims

(1)-(3) and (5)-(6) or notice of processing.

A copy of the agency's notice to complainant and a copy of the new final

decision or notice of processing must be sent to the Compliance Officer

as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

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 (Z1199)

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:

July 13, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.