01991192
10-28-1999
Eileen M. Owens, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Eileen M. Owens v. Department of the Treasury
01991192
October 28, 1999
Eileen M. Owens, )
Appellant, )
)
v. ) Appeal No. 01991192
) Agency No. 98-1356
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On November 7, 1998, appellant received a final agency decision
(FAD) dismissing a portion of 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. Appellant filed a timely appeal
from the FAD with this Commission on November 27, 1998.
In her complaint, appellant alleged that she was subjected to
discrimination on the bases of race (African-American), color (black),
and sex (female) when:
On June 25, 1998, management denied appellant work- related experience
for clearing cruise ship passengers by excluding appellant from the
cc-mail call-out list;
On June 22, 1998, management did not schedule appellant to receive
required Inspector Training;
On June 4 and 5, 1998, management did not afford appellant an opportunity
to request union representation during counseling sessions;
On April 27, 1998, management did not timely approve appellant's travel
voucher;
In May 1998, management failed to issue appellant a timely mid-year
performance appraisal;
On January 31, 1998, management instructed appellant to provide a
doctor's excuse for all sick leave used;
On January 31, 1998, management counseled appellant; and
On January 31, 1998, appellant did not receive adequate representation
from the union.
In a notice of processing dated October 29, 1998, the agency accepted
allegations (1) - (4). However, the agency's FAD, also dated October
29, 1998, dismissed appellant's remaining allegations. Allegation (5)
was dismissed pursuant to EEOC Regulation 29 C.F.R. �1614.107(a), for
failure to state a claim. Specifically, the agency found that a mid-year
review, unlike the official year-end review, was not an employment
action that rendered appellant aggrieved. The agency also dismissed
allegation (5) pursuant to EEOC Regulation 29 C.F.R. �1614.107(e),
for alleging harm from a preliminary step to a personnel action.
The agency dismissed allegations (6) and (7) pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for untimely counselor contact. Specifically,
the agency found that although appellant claimed to have contacted a
counselor on January 31, 1998, appellant only sought advice at that
time, and did not manifest an intent to file a complaint until several
months later. Alternatively, the agency dismissed allegations (6) and
(7) pursuant to EEOC Regulation 29 C.F.R. �1614.107(d), for alleging a
matter raised in a negotiated grievance process. Finally, the agency
dismissed allegation (8) for failure to state a claim, finding that the
adequacy of appellant's representation in the grievance process was not
within the purview of the EEOC.
On appeal, appellant argues that in allegation (5), she was harmed by
not being considered for three vacancies because she was unable to
provide the selection panel with the mid-year review.<1> Further,
appellant argues, the purpose of the mid-year performance appraisal
is to grant employees a "sufficient period of time" to improve their
performance, if needed, before the end of the official rating period.
Appellant, however, only received her mid-year review approximately one
month prior to the close of the rating period. Appellant also contends
that the untimely appraisal was part of a pattern of harassment.
Regarding allegations (6) and (7), appellant contends that she sought
counseling on January 31, 1998, but was instructed to pursue her
allegations with a union grievance. Appellant also claims that the agency
attempted to force her to raise her allegations in the grievance process,
because she was scheduled to leave for three months of out-of-state
training. Appellant contends that the union president conducted a fact
finding on appellant's behalf, but that appellant only filed with the
Federal Labor Relations Board (FLRA) regarding the union president's
inattentiveness to the matters she raised with him. Appellant attached
correspondence from the Union President dated February 10, 1998.
The record includes a letter dated February 9, 1998, from the union
president, requesting, inter alia, further information regarding
allegations (6) and (7). The record also contains a letter from
appellant, dated September 8, 1998, claiming that appellant contacted
a counselor on January 31, 1998. In appellant's formal complaint,
dated July 26, 1998, appellant also indicated that she contacted a
counselor on January 31, 1998, immediately after allegations (6) and (7)
occurred, and was told that if she wanted faster results, she should file
a grievance. The record also includes a signed statement purportedly
from the counselor claiming that appellant approached the counselor at
some point "this winter" regarding a problem, and the Counselor advised
her that she could file either an EEO complaint or a union grievance.
The Counselor's Report provides that appellant initially contacted a
counselor on May 7, 1998.
EEOC Regulation 29 C.F.R. �1614.107(e) provides, in part, that the agency
shall dismiss an allegation claiming that a preliminary step to taking a
personnel action is discriminatory. In the Section by Section Analysis
accompanying the issuance of the 29 C.F.R. Part 1614, the Commission
explained that it intended Section 1614.107(e):
to require dismissal of complaints that allege discrimination in any
preliminary steps that do not, without further action, affect the person;
for example, progress reviews or improvement periods that are not a part
of any official file on the employee. If the individual alleges, however,
that the preliminary step was taken for the purposes of harassing the
individual for a prohibited reason, the complaint cannot be dismissed
under this section because it has already affected the employee.
57 Fed. Reg. 12643 (April 10, 1992). In the present case, appellant
alleged that the mid-year performance appraisal was part of a pattern
of harassment. Accordingly, the agency's dismissal of allegation (5)
pursuant to 29 C.F.R. �1614.107(e) was improper.
Similarly, the agency's dismissal of allegation (5) for failure to state a
claim was improper. Although the allegation may not state an independent
claim of discrimination, when considered together with all of appellant's
allegations, the allegation states a claim. See Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (Feb. 27, 1997).
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. United States Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the time
limitation can be triggered before all the facts that support a charge
of discrimination have become apparent, but not until a complainant
reasonably suspects discrimination.
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.
A complainant commences the EEO process by contacting an EEO Counselor
and "exhibiting an intent to begin the complaint process." See Gates
v. Department of Air Force, EEOC Request No. 05910798 (Nov. 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194
(May 24, 1990)). The Commission finds that although appellant spoke
with a counselor on January 31, 1998, she did not exhibit an intent to
pursue the EEO complaint process until a later date. Appellant did not
contact a counselor again for three months. Appellant argues that her
out-of-state training prohibited her from continuing to converse with a
counselor until she returned, but her training did not prohibit her from
keeping in touch with her union president, as exhibited by appellant's
own submission on appeal.
Appellant also contends that the counselor misled her by suggesting
that she file a grievance. An agency may not dismiss a complaint
based on an appellant's untimeliness, if that untimeliness is caused
by the agency's action in misleading or misinforming the appellant.
See Wilkinson v. United States Postal Service, EEOC Request No. 05950205
(Mar. 26, 1996). See also Elijah v. Department of the Army, EEOC Request
No. 05950632 (Mar. 29, 1996) (if agency officials misled appellant
into waiting to initiate EEO counseling, agency must extend time limit
for contacting EEO Counselor). In the present case, however, the
Commission finds no credible evidence that appellant was misinformed.
The Counselor appears to have properly outlined appellant's options
� file a grievance or file an EEO complaint. Therefore, the agency's
dismissal of allegations (6) and (7) was proper.<2>
Regarding allegation (8), the Commission has held that an employee
cannot use the EEO complaint process to lodge a collateral attack on
another proceeding. See Wills v. Department of Defense , EEOC Request
No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service,
EEOC Request No. 05940585 (Aug. 31, 1994); Lingad v. United States
Postal Service, EEOC Request No. 05930106 (June 24, 1993). The proper
forum for appellant to have raised her challenges to actions which
occurred within the grievance procedure was in that proceeding itself.
It is inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the grievance process. Accordingly,
the agency properly dismissed allegation (8) for failure to state a
claim.
CONCLUSION
Accordingly, the agency's dismissal of allegations (6), (7), and (8)
is AFFIRMED. The agency's dismissal of allegation (5), however, is
REVERSED, and allegation (5) is REMANDED for further processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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 (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 28, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The three positions appellant claims to have applied for are: Vacancy
Announcement HEADQ/98-146SLD, "Equal Employment Specialist," closed June
1, 1998; Vacancy Announcement MDATL\98-016JM, "Import Specialist," closed
July 9, 1998; and Vacancy Announcement INVSC/97-261DES, "Intelligence
Research Specialist," closed June 30, 1998.
2Since we are affirming the agency's dismissal of allegations (6) and
(7) on the grounds of untimeliness, we will not address the agency's
alternative grounds for dismissal, i.e., that appellant filed a prior
grievance on the allegations.