Colleen N. Spring, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration) Agency.

Equal Employment Opportunity CommissionNov 21, 2000
01994241 (E.E.O.C. Nov. 21, 2000)

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).