Debra L. Rippey, Appellant,v.John H. Dalton, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05990737 (E.E.O.C. Nov. 4, 1999)

05990737

11-04-1999

Debra L. Rippey, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.


Debra L. Rippey v. Department of the Navy

05990737

November 4, 1999

Debra L. Rippey, )

Appellant, )

)

v. ) Request No. 05990737

) Appeal No. 01983065

John H. Dalton, ) Agency No. 98-62980-001

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION ON REQUEST FOR RECONSIDERATION

On May 24, 1999, the Department of the Navy initiated a request to

the Equal Employment Opportunity Commission (EEOC) to reconsider the

decision in Rippey v. Department of the Navy, EEOC Appeal No. 01983065

(April 27, 1999). EEOC Regulations provide that the Commissioners

may, in their discretion, reconsider any previous Commission decision.

29 C.F.R. � 1614.407(a). The party requesting reconsideration must submit

written argument or evidence which tends to establish one or more of the

following three criteria: new and material evidence is available that was

not readily available when the previous decision was issued, 29 C.F.R. �

1614.407(c)(1); the previous decision involved an erroneous interpretation

of law, regulation or material fact, or misapplication of established

policy, 29 C.F.R. � 1614.407(c)(2); and the previous decision is of such

exceptional nature as to have substantial precedential implications,

29 C.F.R. � 1614.407(c)(3). For the reasons set forth herein, it is the

decision of the Commission to grant the agency's request.

ISSUE PRESENTED

The issue presented is whether the previous decision properly reversed

the agency's dismissal of one of the allegations in appellant's complaint

for untimely contact with an EEO Counselor.

BACKGROUND

Appellant contacted an EEO Counselor on October 24, 1997, and filed

her formal complaint on December 5, 1997, alleging discrimination on

various bases. In Allegation No. 1 of her complaint, appellant alleged

that because of her race (white), she was not selected for a Supervisory

Budget Analyst position, GS-560-14, on March 27, 1997. On February 13,

1998, the agency dismissed Allegation No. 1 for untimely contact with

the EEO Counselor.<1> The agency concluded that appellant became aware

of the allegedly discriminatory non-selection on April 1, 1997, but

failed to contact an EEO Counselor until October 24, 1997. Because EEOC

regulations require aggrieved individuals to initiate contact within

forty-five days of the matter alleged to be discriminatory, the agency

dismissed Allegation No. 1. See 29 C.F.R. � 1614.105(a)(1).

The previous decision reversed the dismissal of Allegation No. 1, based on

appellant's statement that she did not reasonably suspect discrimination

until September 10, 1997 when her supervisor told her that he lacked

confidence in the GS-14 selectee (S1: Black). Appellant also stated

that her suspicions of discrimination were confirmed on September 23,

1997 when her supervisor asked her to help S1 develop into the position

and made other remarks indicating that S1 was having trouble fulfilling

her duties. The previous decision found that appellant was not reasonably

suspicious of discrimination until September 1997 and that her October

24, 1997 contact was therefore timely.

In its request, the agency makes a number of arguments. First, the agency

argues that the previous decision failed to follow Commission precedent

holding that the selectee's post-selection performance does not assist

the Commission in determining whether the selection was discriminatory.

Second, the agency argues that the previous decision misapplied the case

law regarding when a "reasonable suspicion" of discrimination arises.

Third, the agency argues that it has new evidence to establish that

appellant was suspicious of discrimination long before September 1997.

ANALYSIS AND FINDINGS

The Commission may, in its discretion, reconsider any previous decision

when the party requesting reconsideration submits written argument or

evidence that tends to establish at least one of the criteria of 29

C.F.R. � 1614.407(c). Having reviewed the record, we find that the

agency has submitted new and material evidence which was not readily

available when the previous decision was issued and that the agency's

request thereby meets the criteria of 29 C.F.R. � 1614.407(c). Upon

reconsideration, we find that the agency properly dismissed Allegation

No. 1 for untimely EEO contact.

The new and material evidence provided by the agency is a document

created during a civil case brought by appellant against the agency.

It contains appellant's responses to the agency's interrogatories,

executed on November 14, 1998, six months after the closing of the record

in the previous appeal. The agency provided a copy of appellant's

responses. In answer to interrogatory #6, asking that she describe

the statements that various witnesses would make, appellant indicated

that several individuals were part of "almost daily office discussions

(Jun 97 through Sep 97) of [S1's] inability to perform her duties,

demonstrate any ability to lead, set office priorities, or meet critical

Budget Office deadlines."

The agency noted that appellant's argument for timely contact revolved

around the claim that she only became suspicious of discrimination

when she discovered from her supervisor that S1 was having trouble

in her new position. The answer given in response to the agency's

interrogatory in the civil case indicates that appellant was aware

of daily office discussions concerning S1's work troubles as early as

June 1997. Based on this new evidence, we find that appellant should

have suspected discrimination in June 1997. Because appellant did

not initiate contact with an EEO Counselor until October 24, 1997,

she failed to comply with the applicable forty-five day time limit.

See 29 C.F.R. � 1614.105(a)(1).

Appellant's original appeal brief argued that, failing all else, her

EEO contact was not untimely due to the theory of continuing violation.

The Commission has held that the time requirements for initiating EEO

counseling can be waived as to certain allegations within a complaint

when the complainant alleged a continuing violation; that is, a series

of related discriminatory acts, one of which fell within the time period

for contacting an EEO Counselor. See Reid v. Department of Commerce,

EEOC Request No. 05970705 (April 22, 1999); McGivern v. U.S. Postal

Service, EEOC Request No. 05901150 (December 28, 1990). It is well

settled that the denial of a promotion is an incident with a degree of

permanence which should trigger an employee's duty to assert her rights.

See Anvari v. Department of Health and Human Services, EEOC Request

No. 05930157 (June 17, 1993); Jackson v. United States Air Force, EEOC

Request No. 05950780 (June 27, 1997). Therefore, the theory of continuing

violation does not apply to appellant's March 1997 non-selection and

the forty-five day time requirement for initiating EEO counseling cannot

be waived.

Because we have granted the agency's request for reconsideration and

reversed the previous decision as to Allegation No. 1 based on the new

and material evidence provided, we will not address the other arguments

raised by the agency in its request.

CONCLUSION

After a review of the agency's request for reconsideration, the

previous decision, and the entire record, the Commission grants the

request for reconsideration. The decision of the Commission in Appeal

No. 01983065 (April 27, 1999) in regard to Allegation No. 1 is reversed,

and the agency's dismissal of Allegation No. 1 for untimely EEO contact

is affirmed. There is no further right of administrative appeal on a

decision of the Commission on a Request for Reconsideration.

RIGHT TO FILE A CIVIL ACTION (P0993)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil 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. 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.

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:

11/4/99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 The agency also dismissed five other allegations and accepted one.

The previous decision reversed and remanded all of the dismissed

allegations. The agency only requested reconsideration of the reversal

of Allegation No. 1.