01990755
10-06-1999
Ebtisam A. Habek, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Ebtisam A. Habek, )
Appellant, )
)
v. )
) Appeal No. 01990755
Louis Caldera, ) Agency No. 9808I0490
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On November 6, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated September 29, 1998, dismissing
her complaint for untimely counselor contact and failure to state a claim.
The Commission accepts the appellant's appeal in accordance with EEOC
Order No. 960, as amended.
On July 22, 1998, appellant contacted the EEO office regarding allegations
of discrimination based on national origin (Egyptian), age (d.o.b. October
23, 1939), and reprisal. Informal efforts to resolve appellant's concerns
were unsuccessful. Accordingly, appellant filed a formal complaint
dated August 31, 1998. The agency defined the allegations as follows:
Between November 1997 and June 30, 1998 appellant's chain of supervision
subjected her to a pattern of harassment that included the following:
appellant's supervisor prevented her from doing her job as Community
Librarian and gave those duties to an unqualified individual to perform;
appellant has been denied a permanent place to work and no access to
a telephone;
appellant was falsely accused by her supervisor of treating employees
badly;
the Director of Community Activities (DCA) did not want appellant working
in the DCA and pressured appellant to leave her job by requesting her
to curtail her overseas tour one month after receiving an extension;
appellant's supervisor treated appellant unprofessionally, degrading,
threatening and violently and did not provide her guidance or treat
her like a professional librarian;
Appellant's supervisor encouraged other employees to complain about
her and used back door tactics and contacts with her employees;
Management ignored her request for an impartial individual to conduct
a Commander's 15-6 investigation;
Management prevented her from doing her technical duties, refused her
reassignment, and refused her needed training; and,
Management failed to provide reasonable accommodations for her orthopedic
problem.
On March 12, 1998 appellant was threatened with reprisal in the form
of a Letter of Reprimand by her supervisor if she wrote up any of her
staff members; and,
On March 16, 1998 appellant was removed from her position as Community
Librarian by her supervisor because of age and national origin and
replaced with a younger American.
The agency dismissed appellant's complaint for untimely counselor contact.
The FAD determined that appellant contacted the EEO office on July 22,
1998, 127 days after the dated of the alleged event. The agency also
dismissed appellant's basis of reprisal, stating that there was no
indication in her complaint that she previously filed an EEO complaint,
was a witness in an EEO complaint, or acted in any official EEO capacity.
On appeal, appellant argues that on March 17, 1998 she filed a grievance
which included several of the allegations at issue here. She believed
that the forty-five (45) day time limitation started from the time she
received her grievance result. On the day she learned her grievance had
been rejected, appellant contacted the EEO office. Her contact was
untimely due to the sixty-six (66) days it took to receive a decision
on her grievance.
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. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
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.
We find that the agency improperly defined the issues comprising
appellant's complaint. It is unclear how the harassment described in
allegation (a), between November 1997 and June 30, 1998, occurred beyond
the alleged date of appellant's removal in March 1998. The agency must
place evidence in the record regarding whether appellant was removed,
and the effective date of such removal, or whether she was detailed
to another position. Further, some of the actions included as part
of allegation (a) should stand independently as separate allegations,
particularly the instance regarding reasonable accommodation. The events
included under allegation (a) are also lacking specific dates, which are
essential in light of the agency's dismissal for untimely counselor
contact. Therefore, we order that the complaint be REMANDED so that
the allegations can be clarified and properly defined.
In defense of her untimely counselor contact, appellant states that she
believed that an EEO complaint could be filed following the denial of
her grievance. The Commission has held that the use of the grievance
process does not toll the time limits for contacting an EEO Counselor.
See Schermerhorn v. USPS, EEOC Request No. 05940729 (Feb. 10, 1995).
Here, however, appellant also argues that she thought the forty-five
day time limitation started to run after the denial of her grievance.
Although it appears that appellant may have been unaware of the time
limit for contacting a counselor, or perhaps mislead by the agency, the
FAD did not address the matter when dismissing the complaint pursuant
to 29 C.F.R. �1614.107(b). Accordingly, on remand we order the agency
to ascertain whether appellant had been informed of the necessity for
initiating contact with an EEO counselor and the time limits for doing so.
With respect to the agency's dismissal of appellant's basis of reprisal,
the Commission has held that proof of prior EEO activity is not a
necessary element of a retaliation allegation in order to state a claim.
To require such evidence is the equivalent of deciding the merits of
a claim to which is improper at this stage of the EEO process. In her
formal complaint appellant checked the box labeled �Reprisal� without
identifying a particular EEO activity. EEOC Regulation 29 C.F.R. s
1614.101(b) provides that no person shall be subject to retaliation for
opposing any practice made unlawful by Title VII, the Age Discrimination
in Employment Act (ADEA), the Equal Pay Act (EPA), or the Rehabilitation
Act, or for participating in any stage of administrative or judicial
proceedings under those statutes. In order to establish discrimination
based on retaliation, an individual must initially be able to show that
he or she engaged in prior EEO activity based on 29 C.F.R. s 1614.101(b).
A review of the Counselor's Report indicates that appellant believes
the reprisal to stem from her �counseling� employees. It is unclear
from the record what is meant by the use of the term, and therefore on
remand we order the agency to provide appellant with the opportunity to
clarify her reprisal basis.
Accordingly, the agency's dismissal of appellant's complaint is VACATED.
The complaint is REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
1. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall schedule in writing a meeting between appellant
and an EEO Counselor. The meeting shall provide appellant with the
opportunity to clarify the issues of her complaint; to identify the dates
of specific agency actions; and to clarify her alleged bases of reprisal.
Within forty-five (45) calendar days of the date this decision becomes
final, the agency shall conduct a supplemental investigation to ascertain:
(a) whether appellant had been informed of the necessity for initiating
contact with an EEO counselor and the time limits for doing so, and;
(b) whether appellant was mislead by an agency official regarding the
filing of both a grievance and an EEO complaint.
The agency shall issue a notice of processing and/or new final decision,
specifically setting forth the disputed actions raised therein.
A copy of the agency's notice to appellant of the opportunity to meet
with a Counselor and a copy of the notice of processing and/or new final
decision 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:
October 6, 1999
___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations