01982320
04-09-1999
Elaine Morrison, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Elaine Morrison, )
Appellant, )
)
v. ) Appeal No. 01982320
) Agency No. 97-00146-N01
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing an allegation 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. and � 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. Appellant alleged that
she was harassed on the bases of race (Black), sex (female), physical
disability (speech impediment), and in reprisal for prior EEO activity
when she was denied holiday pay for the �last two years.� In its FAD,
the agency dismissed the allegation for failure to initiate timely EEO
contact pursuant to 29 C.F.R. � 1614.107(b).
In Morrison v. Department of the Navy, EEOC Appeal No. 01972076 (December
3, 1997), the Commission remanded the above referenced allegation
and instructed the agency to conduct a supplemental investigation to
determine whether the appellant contacted an EEO counselor in a timely
manner on the issue of not receiving holiday pay. Specifically, the
agency was instructed to send a letter requesting the specific dates
that appellant alleges she was denied holiday pay and the date she
realized she was being discriminated against in regard to this issue.
Appellant was instructed to respond to the agency's letter within fifteen
(15) days of receipt. The agency submitted a copy of the letter sent in
compliance with the Commission's order. When appellant failed to respond,
the agency again dismissed the complaint based on untimely EEO contact.
Appellant has not submitted a statement in support of her appeal.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of an EEO 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 is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
Upon review, we find the record is still insufficient for a determination
on the timeliness of appellant's EEO contact. While we recognize that
appellant failed to respond to the agency's request for information, the
�agency bears the burden of obtaining sufficient information to support
a reasoned determination as to timeliness.� Guy v. Department of Energy,
EEOC Request 05930703 (January 4, 1994)(quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992).<1> In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,
1993), the Commission stated that the agency has the burden of providing
evidence to support its final decisions. See Gens v. Department
of Defense, EEOC Request No. 05910837 (January 31, 1992). Clearly,
the agency is in possession of records documenting appellant's work
schedule and when holiday pay was distributed during the above referenced
two year period. Such records, in the absence of documentation from
appellant, could indicate the latest date that appellant was purportedly
denied holiday pay. Without identifying the dates on which the alleged
discriminatory incidents occurred, the agency cannot support a reasoned
determination as to the timeliness of appellant's EEO contact.
Accordingly, we VACATE the FAD and REMAND the complaint for processing
in accordance with this decision and ORDER below.
ORDER (E1092)
The agency is ORDERED to take the following action:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall send a letter to appellant requesting that she provide:
(1) the specific dates she alleges that she was denied holiday pay; and
(2) the date she became aware she was being discriminated against with
regard to this issue. The letter shall also advise appellant that her
failure to respond within fifteen days may result in the dismissal of
her complaint;
The agency shall supplement the record with all relevant documentation
regarding the payment of holiday pay during the above referenced two
year period, as well as appellant's relevant work schedules to show any
and all dates when appellant may have been entitled to holiday pay; and
Within forty-five (45) calendar days of the date this decision becomes
final, the agency shall issue a notice of processing or a new FAD
dismissing this allegation.
A copy of the agency's notice of processing or new FAD 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:
April 9, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 We remind appellant that her failure
to respond to the agency's request for information may result in
a dismissal of her claim pursuant to 29 C.F.R. � 1614.107(g).