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.