01994241
11-21-2000
Colleen N. Spring, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration) Agency.
Colleen N. Spring v. Department of Transportation
01994241
November 21, 2000
.
Colleen N. Spring,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
(Federal Aviation Administration)
Agency.
Appeal No. 01994241
Agency No. 2-98-2072
DECISION
Based on a review of the record, we find that the agency improperly
dismissed a portion of the complainant's complaint, pursuant to EEOC
Regulation 29 C.F.R. 1614.107 (d),because she raised the same matter
raised in a negotiated grievance.<1> Complainant alleged that she was
subjected to discrimination on the basis of gender (female) when:
She was decertified as an Air Traffic Controller on December 24, 1997;
Management canceled her hardship schedule after two years and her
requests to swap annual leave days with regular days off in April 1997
were denied;
she was decertified on the local control position in 1990;
she was sexually harassed and subjected to a hostile work environment;
her request for a hardship transfer was denied in 1986;
she was date raped in 1993 by a co-worker; and
she was physically assaulted by a co-worker in 1996.
The agency dismissed allegations 2 through 7 based on the complainant's
untimely contact with an EEO counselor. Based on the records of the
EEO counselor, the complainant first contacted the counselor about
the incidents on January 23, 1998. Our review of the record supports
the agency's conclusion and we affirm the agency's dismissal of these
allegations under 29 C.F.R. �1614.107(b).<2> The agency also concluded
that these allegations did not constitute continuing violations because
they were discrete, isolated and sufficiently distinct to trigger the
duty to contact an EEO counselor. We agree with the agency's assessment
of these incidents.
Relevant to the determination of whether untimely claims are continuing
violations is whether the acts were recurring or were more in the nature
of isolated employment decisions; whether an untimely discrete act had the
degree of permanence which should have triggered an employee's awareness
and duty to assert his or her rights; and whether the same agency
officials were involved. Woljan v. Environmental Protection Agency,
EEOC Request No. 05950361 (October 5, 1995). Based on the complainant's
description of the claims, they are of such a serious nature that they
should have triggered some action on the part of the complainant.
With respect to allegation 1 concerning the complainant's claim that
she was decertified as an Air Traffic Controller on December 24, 1997
because of discrimination, the agency concluded that the claim had been
raised in a negotiated grievance proceeding. Based on this fact, the
agency dismissed the complainant's claim under 29 C.F.R. �1614.107(d).
Our review of the record, however, reveals no indication that the agency's
negotiated grievance procedure permitted the complainant to raise issues
of discrimination. Without proof of this key element of the regulations,
we cannot support the agency's dismissal.
CONCLUSION
Based on the foregoing and after a thorough review of the record before
us, the agency's dismissal of the complainant's claim concerning her
decertification as an Air Traffic Controller on December 24, 1997 is
hereby REVERSED and REMANDED. The agency is Ordered to process the
claim as indicated below.
ORDER (E0900)
The agency is ordered to process the remanded claim 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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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), 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 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
(R0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
11/21/00
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Because we find that the agency improperly dismissed allegation
1, the dismissed allegations may constitute background evidence of
discrimination. See Silva v. U.S. Postal Service, Request No. 05960115
(June 20, 1996).