Ebtisam A. Habek, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 6, 1999
01990755 (E.E.O.C. Oct. 6, 1999)

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