01a51240
03-21-2006
Diana Jackson-Spells, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Security Service), Agency.
Diana Jackson-Spells,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Security Service),
Agency.
Appeal No. 01A51240
Agency Nos. Z2-00-004, Z6-01-001, and Z6-02-002
Hearing No. 120-A1-4009X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity
Commission (EEOC or Commission) accepts the complainant's appeal from
the agency's October 29, 2004 final order in the above-entitled matter.
The complainant filed three complaints that were separately investigated
and later consolidated by an EEOC Administrative Judge (AJ). She claimed
that the agency discriminated against her based on her race, national
origin and color (African-American/black), sex (female), and reprisal
for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964, as applicable, when:
1. she was denied training courses from 1996 to May 1999,1
2. she was not promoted to GS-12 following her March 1999 request for
an upgrade of her position.
3. her contracting work was reassigned to another employee on November 9,
2000,
4. she was denied the opportunity to apply for a Procurement Analyst
position shortly after November 9, 2000,
5. she was denied job reclassification/promotion in January 2001 after
a requested desk audit,
6. she was subject to a hostile work environment,
7. she was subject to a criminal investigation (she was interviewed
twice in November 2000 and the report was issued on April 4, 2001), and
8. she was suspended for five days effective November 14, 2001.
With regard to claims 1 and 2, the complainant sought EEO counseling on
June 25, 1999. With regard to claims 3 and 4, the complainant sought EEO
counseling on February 21, 2001. With regard to claim 7, the complainant
sought EEO counseling on November 20, 2001. The AJ's decision dismissed
claims 1, 2, 3, 4 and 7 on the grounds that the complainant failed
to timely seek EEO counseling within the 45 calendar day time limit.
We affirm this dismissal for all but the last incident of training in
claim 1.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1). The time limit to seek EEO counseling shall be extended
when an individual shows she did not know and reasonably should not
have known that the discriminatory action or personnel action occurred.
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
With regard to the last incident of claim 1, the complainant argues that
she did not have a reasonable suspicion of discrimination until May 12,
1999, when she learned that one or two white employees were going to
the training, but not her. However, she states that on May 7, 1999,
she learned that the class was not cancelled, as she had been told.
We need not decide whether this incident is timely because it fails to
state a claim. The record shows that this matter actually concerns the
training being delayed, as the complainant was rescheduled to attend
the training in October 1999. She has not shown how she was harmed by
the delay, and accordingly this matter is dismissed under 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. 2 See Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
With regard to claims 5, 63 and 8, after a review of the record in
its entirety, including consideration of all statements submitted on
appeal, it is the decision of the EEOC to affirm the agency's final
order, because the AJ's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
Because the AJ's decision did not explain with specificity its reasoning
regarding claim 8, we will do so here. The agency initially proposed
suspending the complainant for 10 days under charges that she both failed
to submit an accurate travel voucher and to give accurate information
to a criminal investigator regarding this. The charges followed the
findings in an agency criminal investigative report. In response to
the proposed suspension, the complainant persuasively rebutted some of
the conclusions of the criminal investigative report. Thereafter, the
agency suspended the complainant. The suspension letter accepted part
of the complainant's explanation, and reduced the proposed suspension
to five days. In determining whether there was discrimination, the
question is not whether the criminal investigative report reached the
correct conclusions. Rather, the question is whether the people who
had input into suspending the complainant unfairly relied on the report
or disparately treated the complainant. The complainant failed to show
such reliance was discriminatory or retaliatory. Given the charges and
the rebuttal, the complainant failed to show that the deciding official
unfairly relied on the report to decide a suspension was warranted.
Moreover, the complainant did not show that she was disparately treated.
Accordingly, the final order, which implemented the AJ's decision to
dismiss part of the complainant's complaints, and to hold no hearing
and find no discrimination on the remaining portion is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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. 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 (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
March 21, 2006
__________________
Date
1The decision of EEOC AJ, which was fully implemented by the agency,
listed three separate incidents, the most recent in May 1999. On appeal,
the complainant correctly contends that claim 1 includes an additional
training class prior to May 1999.
2In fact, the complainant failed the training.
3The decision of the AJ separated out the hostile work environment
issue into two numbered claims. On appeal, the complainant contends
that her hostile work environment claim is one claim and contains at
least four sets of facts, not two. Even viewing it as one claim, the
AJ properly issued a decision without a hearing on this matter finding
no discrimination.
??
??
??
??
5
01A51240