01976849
01-28-1999
Debra A. Jacobs, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Debra A. Jacobs v. Department of the Navy
01976849
January 28, 1999
Debra A. Jacobs, )
Appellant, )
)
v. ) Appeal No. 01976849
) Agency No. DON 97-00129-004
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
For the reasons set forth below, the Commission modifies the agency's
August 7, 1997 final decision (FAD), which dismissed appellant's May 6,
1997 formal EEO complaint for untimely EEO Counselor contact, pursuant
to 29 C.F.R. �1614.107(b), in pertinent part. We are not persuaded by
the arguments of either party on appeal to reach a contrary result.
As a threshold matter, we find appellant has not expressly disputed
the FAD's framing of her issues that, for a prohibited reason, she was
discriminated against when:
(a) on March 6, 1997, a named agency official announced the appointment
of a named male employee to head the Work Management Branch; and
(b) appellant was the subject of a pattern of discrimination when her
title of "Supervisor" was changed to "Inspector" in favor of a male,
when her position as Supervisory Equipment Specialist, GS-1670-11, was
reclassified to Equipment Specialist (General), GS-1670-11, effective
April 28, 1996.
We find the FAD erred in failing to provide sufficient evidence, as
it must, in support of the agency's finding that appellant's March 12,
1997 EEO Counselor contact was untimely, i.e., beyond 45 days from the
effective date of the contested personnel action, in accordance with
29 C.F.R. �1614.105(a)(1). Guy, Jr. v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994); Henry v. U.S. Postal Service,
EEOC Request No. 05940897 (May 18, 1995).
In the present case, we find a factual dispute that must be resolved
through remanding issue (a) to the agency for a supplemental
investigation. The FAD declared that the announcement at issue in
allegation (a) took place on January 16, 1997, "and became effective
16 February 1997." However, appellant argues it was only on March 6,
1997 that she first learned of the appointment of the male employee.
With regard to allegation (b), however, we find the agency properly
dismissed that allegation for untimely EEO Counselor contact. We
find neither evidence nor argument by appellant, as we indicated
above, to set aside the FAD's determination as to (b). Instead,
we find that a reasonable person in appellant's position would have
suspected discrimination concerning the alleged change in her title
from "Supervisor" to "Inspector," and reclassification effective
April 28, 1996, months before appellant's March 12, 1997 EEO contact.
Cochran v. U.S. Postal Service, EEOC Request No. 05920399 (June 18,
1992). In this regard, we find allegation (b) to be a discrete event
with a degree of permanence that should have put appellant on notice of
alleged discrimination. Berry v. Board of Supervisors, 715 F.2d 971,
981 (5th Cir. 1983).
We also note the FAD's reference to a June 23, 1997 agency request for
clarification. We find the agency, in that letter, improperly allotted
appellant seven days to respond or suffer dismissal of her complaint. The
Commission's regulations, set forth at 29 C.F.R. �1614.107(g), permit an
agency to dismiss a complaint, or part thereof, for failure to cooperate
with an agency request for information where there is an insufficient
record for adjudication. The time limit under that regulation, however,
is 15 days. However, we do not read the FAD to have dismissed either
of appellant's issues pursuant to 29 C.F.R. �1614.107(g), since the FAD
expressly dismissed appellant's complaint on timeliness grounds.
We further note appellant's allegations of improper EEO Counseling.
In this regard, we call appellant's attention to the Commission's EEO
Management Directive For 29 C.F.R. Part 1614 (EEO MD-110, October 22,
1992) at 4-8:
If a complainant is dissatisfied with the processing of his/her pending
complaint, whether or not it alleges prohibited discrimination as a basis
for dissatisfaction, (s)he should be referred to the agency official
responsible for the quality of complaints processing. Agency officials
should earnestly attempt to resolve dissatisfaction with the complaints
process as early and expeditiously as possible.
In light of our remand of this matter for further processing, we also
address appellant's contention on appeal that the agency improperly
disqualified her chosen representative, thus compelling her to select
a different representative. Binion v. Department of the Air Force,
EEOC Appeal No. 01963870 (March 17, 1997).<1>
In the present case, we find the agency disqualified appellant's
representative, in a June 17, 1997 letter to appellant, on two grounds:
(1) it was a conflict of interest for appellant's subordinate to represent
her; and (2) he was representing another activity employee at the time
and, accordingly, his official time could be restricted by the agency.
EEOC Regulation 29 C.F.R. �1614.605(c) provides, in pertinent part,
that the Commission or the agency may, after giving the representative
an opportunity to respond, disqualify a complainant's representative,
where that representation "would conflict with the official or collateral
duties of the representative."<2>
In Binion, supra, we found, inter alia, "that vesting the agency with
the authority to completely deprive a complainant of his or her choice
of representative through the disqualification procedures based upon
interests other than ethical considerations would be both inconsistent
with the Commission's past application of conflict of interest provisions
in the EEO process and would constitute a significant expansion of
agency authority fraught with potential pitfalls." Accordingly, we held
the agency's disqualification of that appellant's representative to be
"inappropriate." Id.
In the present case, we decline to disturb the agency's prior
determination to disqualify appellant's chosen representative. We
find that appellant was the supervisor of her representative, who
was also a union representative, Although appellant has argued that
she is no longer her representative's supervisor, the agency submits,
in its opposition to her appeal, that appellant "signs his time card
and approves his leave."<3> In addition, we find in this matter
that, given the professional relationship between appellant and her
chosen representative, his position as a union representative, and the
possibility that appellant may subsequently be reinstated as a supervisor,
there is a "potential conflict of interest." Riess v. Department of
the Navy, EEOC Request No. 05880243 (June 22, 1988).
Finally, we reject the agency's apparent attempt, on appeal, in the
present case, to dismiss appellant's complaint for failure to state
a claim, as permitted under 29 C.F.R. �1614.107(a), in pertinent part.
Riden v. Department of the Treasury, EEOC Request No. 05970314 (October 2,
1998).
The FAD is hereby REVERSED as to allegation (a), and AFFIRMED as to
allegation (b). Allegation (a) is hereby REMANDED for further processing,
consistent with the Commission's decision and applicable regulations.
The parties are advised that this decision is not a decision on the
merits of appellant's complaint. The agency is directed to comply with
the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to conduct a supplemental investigation as to
allegation (a) in appellant's complaint in accordance with 29 C.F.R. Part
1614 and instructions in this decision. Specifically, the agency shall:
1. With appellant's cooperation, the agency shall ascertain the date when
appellant knew or should have known a male employee had been appointed to
head the Work Management Branch. The agency's supplemental investigation
in this regard shall include, but not be limited to, obtaining statements
under oath or affirmation from the agency official who purportedly
announced the appointment of the male employee; from appellant; and from
other persons with first-hand knowledge of the alleged announcement and
appointment.
2. Thereafter, the agency shall issue a letter to appellant accepting
allegation (a) for investigation, or, if it again decides to dismiss
allegation (a), the agency shall issue a FAD with appeal rights to the
Commission, dismissing allegation (a) and setting forth the legal grounds,
factual bases, and evidence relied upon.
3. The agency shall complete all the above ordered actions, including
issuance of the letter of acceptance or FAD within sixty (60) calendar
days of the date this decision becomes final.
4. A copy of the supplemental investigation, and a copy of the acceptance
letter and/or FAD issued pursuant to instruction 2 above 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 (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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:
January 28, 1999
DATE Ronnie Blumenthal, Director
1In Binion, supra, we also noted the following: "While the Commission has
on occasion addressed the appropriateness of disqualification decisions in
connection with an appeal, we advise appellant and the agency that normally
questions concerning the appropriateness of the disqualification of a
representative or a broad denial of official time to work on particular
cases should be directed to the Director of the Complaints Adjudication
Division within the Federal Sector Program of the Office of Federal
Operations at the Commission."
2However, irrespective of whether a complainant has a designated
representative, the complainant is, at all times, responsible for going
forward with the complaint. 29 C.F.R. �1614.605(e).
3We infer from the record that the agency was referring to appellant's
representative whom it had disqualified.