01992044_r
11-05-1999
Cynthia C. Dang, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Cynthia C. Dang, )
Appellant, )
)
v. ) Appeal No. 01992044
) Agency No. DON 98-32253-007
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On January 4, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on December 5, 1998,
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. In her complaint, appellant alleged
that she was subjected to discrimination on the bases of race (Hawaiian),
color (fair), gender (female), physical disability, and in reprisal for
prior EEO activity when:
On June 5, 1998, appellant perceived a continuing violation when she
was not selected for the following positions:
Program Analyst, GS-343-12, under Vacancy Announcement 97A-900-7400,
Electrical/Electronics and Calibration Shop (Code 950); selection was
made March 16, 1998; and
Program Analyst, GS-342-12, under Vacancy Announcement 97A-900-7400,
Support Services and Protective Coating Shop (Code 970); selections were
made on April 8, 1998;
Appellant was not selected for the Combined Trades Supervisor II
position, WS-4701-14, under Vacancy Announcement 30-038-93, Operations
Department (Code 300); selections were made July 31, 1998;
Appellant was not selected for the Production Shop Planner (General)
position, under Vacancy Announcement 98A-300-2580, Operations Department
(Code 300); selections were made on July 6, 1998;
Appellant was not selected for the Program Analyst position, GS-343-12,
in the Structural Fabrication Shop (Code 920); selections were made
November 2, 1997;
Appellant was not selected for the Program Analyst position, GS-343-12,
in the Mechanical and Piping Shop (Code 930); selections were made
November 12, 1997 and February 24, 1998;
Appellant was not selected for two Program Analyst positions, GS-343-12,
in the Crane Division (Code 980); selections were made on November 14,
1997 and February 12, 1998;
Appellant was not selected for the Ordinance Equipment Mechanic position,
WG-6641-70, under Vacancy Announcement 95-65-88; and
Management over-scrutinized appellant's work; management assigned
appellant's work to others, which denied appellant access to job
training; management reassigned appellant away from �FMB Project Mast;�
and appellant performed work of a higher grade.
The agency accepted allegations (1)(a), (1)(b), (2), and (3),
but dismissed appellant's remaining allegations. The agency
dismissed allegations (4), (5), and (6) pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely counselor contact. Allegation (7)
was dismissed pursuant to 29 C.F.R. �1614.107(a), for failure to state
a claim. Specifically, the agency found that appellant was not aggrieved,
because she never applied for the position. Finally, the agency dismissed
allegation (8) pursuant to 29 C.F.R. �1614.107(a), for stating the same
claim raised in Agency Numbers DON 98-32253-006 and DON 99-32253-002.
On appeal, appellant contends that she did not have a reasonable suspicion
of discrimination regarding the non-selections in allegations (4), (5),
and (6), because she never received notice that a selection had been made.
Appellant contends that she applied for the position listed in allegation
(7), and the selecting official vowed to �blackball� her application.
In response, the agency notes that appellant contacted an EEO Counselor
on June 22, 1998, more than forty-five days after selections were made
in allegations (4), (5), and (6). The agency argues that appellant did
not apply for the position in allegation (7), and notes that appellant's
name does not appear on the �Certificate of Eligibles� for the position.
The record includes a document entitled �Certificate of Eligibles,� dated
May 17, 1995, for allegation (7). This document should list the names of
those who applied for the position and are considered eligible for it.
However, the Commission finds that this document is a referral list --
it does not necessarily list all of those who applied for the position,
only those who were most qualified among the applicants.
The only notice of non-selection included in the record, dated July 29,
1998, pertains to the position listed in allegation (2). None of the
relevant Vacancy Announcements provide a closing date or other date
certain from which appellant could ascertain that she has not been
selected. The record also includes a list of appellant's prior EEO
activity, but does not contain any of the documentation from the prior
complaint files.
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 Ball v. United States Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the time
limitation can be triggered before all the facts that support a charge
of discrimination have become apparent, but not until a complainant
reasonably suspects discrimination.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
A complainant cannot acquire a reasonable suspicion of discrimination in
non-selection claims until she is aware of the non-selection. See Stephens
v. Department of Health and Human Services, EEOC Appeal No. 01982188
(Mar. 18, 1999) (finding that the date an appellant received a notice
of non-selection, not the date of the selection, triggers the counselor
contact time limitation). In the present case, appellant must have
learned of her non-selection through some means, or she would not have
raised allegations (4), (5), and (6) in her complaint. However, the
Commission finds no proof of when or how appellant received notice of
her non-selections. Accordingly, the Commission is unable to determine
when appellant acquired a reasonable suspicion of discrimination with
regard to allegations (4), (5), and (6).
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). 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 (Apr. 22, 1994).
Regarding allegation (7), the Commission finds no evidence that appellant
failed to apply for the position. The agency improperly relies on the
absence of appellant's name from a document that does not list all of the
applicants for the position. Thus, the agency failed to substantiate the
bases for its final decision. See Marshall v. Department of the Navy,
EEOC Request No. 05910685 (Sept. 6, 1991).
EEOC Regulation 29 C.F.R. �1614.107(a) also provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
However, the record does not contain a copy of the prior complaints.
Accordingly, the Commission cannot determine whether the allegations
raised by appellant in the present complaint are, in fact, identical
to any previously raised allegations. Clearly, it is the burden of
the agency to have evidence or proof to support its final decisions.
See Marshall v. Department of Navy, EEOC Request No. 05910685 (Sept. 6,
1991). Accordingly, the agency's decision to dismiss allegation (8)
for stating a claim that has been decided by the agency is REVERSED.
CONCLUSION
Accordingly, the agency's dismissal of allegations (4), (5), and (6) is
VACATED, and allegations (4), (5), and (6) are REMANDED for a supplemental
investigation as provided below. The agency's dismissal of allegations
(7) and (8) is REVERSED, and allegations (7) and (8) are REMANDED for
further processing.
ORDER
The agency is ORDERED to perform the following:
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall conduct a supplemental investigation concerning the
timeliness of allegations (4), (5), and (6). This investigation shall
include, but is not limited to, any notice of non-selection or other
documentation necessary to determine the date on which appellant became
aware of her non-selections raised in allegations (4), (5), and (6).
The agency also shall obtain an affidavit or statement from appellant
regarding the exact date and circumstances on which she became aware
of her non-selections raised in allegations (4), (5), and (6) and when
she first suspected discrimination regarding her non-selections, as
well as the reason(s) for that suspicion. A copy of this supplemental
investigation must be included in the record.
Thereafter, within forty-five (45) days of the date this decision becomes
final, the agency must issue a notice of processing regarding allegations
(4), (5), and (6), or notify appellant that these allegations will not
be processed.
The agency must process allegations (7) and (8) in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to appellant that it
has received the remanded allegations within thirty (30) calendar days
of the date this decision becomes final.
The agency shall issue appellant a copy of the investigative file and
also shall notify appellant 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 appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the notice regarding the processing status of allegations (4),
(5), and (6), the agency's letter of acknowledgment to appellant for
allegations (7) and (8), 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 5, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations