Edna M. Dawson, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Office of Dependent Education Activity), Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01992442 (E.E.O.C. Nov. 5, 1999)

01992442

11-05-1999

Edna M. Dawson, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Office of Dependent Education Activity), Agency.


Edna M. Dawson v. Department of Defense

01992442

November 5, 1999

Edna M. Dawson, )

Appellant, )

)

v. ) Appeal No. 01992442

) Agency No. EU-FY99-04

William S. Cohen, )

Secretary, )

Department of Defense, )

(Office of Dependent )

Education Activity), )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The final agency decision was issued on January

26, 1999. The appeal was postmarked February 3, 1999. Accordingly,

the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in

accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed portions of

appellant's complaint on the grounds of untimely EEO contact and that

appellant elected to proceed under the agency's negotiated grievance

procedure.

BACKGROUND

Appellant is an elementary school teacher at the agency's Robinson

Barracks Elementary School in Stuttgart, Germany. According to the

EEO Counselor's report, appellant has been attempting to resolve her

situation since 1996. The report states that appellant has not received

appropriate information from the agency with regard to her EEO rights.

The report notes that appellant contacted the Commission in 1997, and

that the Commission referred the matter to the agency. On November 18,

1998, appellant filed a formal EEO complaint wherein she alleged that she

had been subjected to discriminatory harassment on the bases of her race

(black) and color (black) when:

SCHOOL YEAR 1993-94

1. She was pressured to move to teach fourth grade after she prepared her

room for a first grade class. White colleagues were not asked to move.

2. The school principal arranged to have an open house for appellant's

class during which time the principal encouraged parents to verbally

attack her character and teaching methods.

3. Someone with a key to appellant's room broke into it. Government

equipment and personal property in the amount of $1,000 were stolen.

Appellant was summoned by the CID and fingerprinted. Two white teachers

who shared the space with appellant were not subjected to the same

treatment.

SCHOOL YEAR 1994-95

4. Appellant was assigned to a sixth grade classroom that contained

only minority children. The other sixth grade classroom, which was

taught by a white colleague, had predominantly white children.

5. The principal came into appellant's room and said that she had

received complaints from parents about appellant not communicating

with them. Appellant was informed by some parents that the principal

had contacted them about appellant's performance. Appellant alleged

that the complaints were solicited by the principal.

SCHOOL YEAR 1995-96

6. Appellant was accused of being a Black Panther, unfit to work with

children, she was accused of saying that black people are less intelligent

than whites, and she was accused of making black children feel bad.

7. The principal met privately with parents and then set up a meeting

where the parents were so hostile toward appellant that the meeting had

to be terminated.

8. The principal insinuated that appellant was guilty of child abuse

and she conducted a demeaning and humiliating school level investigation.

Despite the fact that the principal could not substantiate the charges,

she continued to harass appellant and appellant was forced to seek legal

counsel at her own expense.

9. Due to the harassment, appellant attempted to meet with the District

Superintendent but the Superintendent refused to talk with her or her

attorney.

SCHOOL YEAR 1996-1997

10. A parent who had spoken to the principal and whom the principal

directed appellant to call used abusive language on the telephone and told

appellant that she was on her way to the school "to take care of you."

11. All parents who complained about appellant initially talked to

the principal. Appellant believes that the principal was behind the

complaints and that several parents confirmed this was the case.

SCHOOL YEAR 1997-98

12. Five days after the new principal arrived, the new principal accused

appellant of making decisions for her pertaining to a substitute teacher.

13. During the North Central Accreditation visit, one member of the team

set up an appointment to see the mentoring program that appellant was

involved in. The team member did not appear and instead she spent the

time chatting with a white second grade teacher. Appellant and a black

colleague felt slighted and hurt.

14. In June 1998, the new principal gave sixteen ratings of "Exceptional"

with monetary awards and four ratings of "Commendable". When appellant

questioned her as to the reason she did not receive an "Exceptional"

rating, the new principal asked her to submit a write-up justifying

the rating. Subsequent to appellant's submission of the write-up,

her rating was changed to "Exceptional". Appellant questioned the new

principal if anyone else had to submit a justification for their rating

and she replied in the negative.

15. On September 10, 1998, during a fire drill, one of appellant's

students was detained by fire drill personnel without her knowledge

while leaving the building. After appellant discovered this, she

hurried back to the building to search for the student but the new

principal informed her that the student was okay. When appellant

questioned the new principal, appellant learned that the student had

been removed pursuant to the principal's orders to check accountability.

Appellant believes that the principal was checking on her.

16. During the school picture day on October 15, 1998, appellant believes

that the new principal rearranged the schedule for another class in

order to cause her considerable inconvenience. According to appellant,

no other teachers had their times changed by the principal.

In its final decision, the agency dismissed the portions of appellant's

complaint that involve incidents that occurred during the 1993-94,

1994-95, and 1995-96 school years on the grounds of untimely EEO contact.

The agency determined that appellant did not attempt to raise her concerns

through the EEO process until October 2, 1996. The agency also dismissed

these allegations on the grounds that appellant elected to raise these

matters through the agency's negotiated grievance procedure. The agency

determined that appellant raised these issues through the negotiated

grievance procedure in a meeting with the principal on February 22, 1996.

The agency accepted for investigation the portions of the complaint

dealing with incidents that allegedly occurred during the 1996-97 and

1997-98 school years.

On appeal, appellant contends that during the period of 1993-1996,

there was no EEO Counselor available to consult with her. According to

appellant, a list of EEO Counselors was finally provided to her on

October 2, 1996, but it was outdated. Appellant maintains that the

matters at issue have never been raised through the negotiated grievance

procedure.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.301(a) provides in relevant part that

when a person is employed by an agency subject to 5 U.S.C. �7121(d) and

is covered by a collective bargaining agreement that permits allegations

of discrimination to be raised in a negotiated grievance procedure, a

person wishing to file a complaint or a grievance on a matter of alleged

employment discrimination must elect to raise the matter under either

part 1614 or the negotiated grievance procedure, but not both.

Upon review of the record, we note that the record does not establish

that appellant filed a grievance under the negotiated grievance

procedure with regard to the matters that were dismissed in the final

agency decision. The record contains an undated memorandum written

by a Faculty Representative Spokesperson. This memorandum indicates

that on February 22, 1996, appellant was given a copy of the negotiated

agreement by the principal and she was told that this contract is the

avenue for addressing any grievance she might have. However, appellant

denied that she filed a grievance with regard to the matters at issue,

and there is no documentation in the record that establishes she filed

such a grievance. Moreover, the record does not contain a copy of the

negotiated agreement. Therefore, even if appellant filed a grievance

concerning the matters at issue, we are unable to determine whether the

negotiated grievance procedure permits allegations of discrimination.

We find that the agency failed to substantiate the bases for its dismissal

on this grounds. See Marshall v. Department of the Navy, EEOC Request

No. 05910685 (September 6, 1991). Accordingly, the agency's dismissal

of those portions of appellant's complaint pertaining to incidents

that allegedly occurred during the school years of 1993-94, 1994-95,

and 1995-96, on the grounds that appellant elected to proceed through

the negotiated grievance procedure was improper and is REVERSED.

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 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the

Commission shall extend the 45-day time limit when the individual shows

that he or she was not notified of the time limits and was not otherwise

aware of them, that he or she did not know and reasonably should not have

known that the discriminatory matter or personnel action occurred, that

despite due diligence he or she was prevented by circumstances beyond his

or her control from contacting the counselor within the time limits, or

for other reasons considered sufficient by the agency or the Commission.

According to the EEO Counselor's report, appellant has been attempting to

resolve her situation since 1996. The report states that appellant has

not received appropriate information from the agency as to her EEO rights.

Appellant contends that no EEO Counselors were available to consult with

her during the period of 1993-96. It appears that on October 2, 1996,

appellant was provided with an outdated list of EEO Counselors. In its

final decision, the agency determined that appellant first attempted to

raise her concerns through the EEO process on October 2, 1996. We note

that the agency has not refuted appellant's argument on appeal that there

were no EEO Counselors available to consult with her during the period

of 1993-96. Further, although the statement that appellant did not

receive appropriate information from the agency as to her EEO rights is

lacking in specifics, it is apparent that appellant was at a disadvantage

in utilizing the agency's EEO complaint procedures. Consequently,

we find that sufficient justification exists for an extension of the

45-day limitation period for contacting an EEO Counselor. We find

that appellant's contact of an EEO Counselor was timely with regard

to the dismissed allegations. Accordingly, the agency's dismissal

of those portions of appellant's complaint pertaining to incidents

that allegedly occurred during the school years of 1993-94, 1994-95,

and 1995-96, on the grounds of untimely EEO contact was improper and

is REVERSED. These portions of the complaint are hereby REMANDED for

further processing pursuant to the Order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

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:

November 5, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations