Francine Plummer, Complainant,v.James Lee Witt, Director, Federal Emergency Management Agency, Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
01990409 (E.E.O.C. Feb. 15, 2000)

01990409

02-15-2000

Francine Plummer, Complainant, v. James Lee Witt, Director, Federal Emergency Management Agency, Agency.


Francine Plummer v. Federal Emergency Management Agency

01990409

February 15, 2000

Francine Plummer, )

Complainant, )

)

v. )

) Appeal No. 01990409

James Lee Witt, ) Agency No. 98-014

Director, )

Federal Emergency Management Agency, )

Agency. )

_____________________________________)

DECISION

On October 9, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD), dated September 14, 1998, dismissing

her complaint for untimely counselor contact and failure to state a

claim.<1> The Commission accepts the appeal in accordance with EEOC

Order No. 960, as amended.

On July 18, 1997,<2> complainant contacted the EEO office regarding

claims 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.

Informal efforts to resolve complainant's concerns were unsuccessful.

Accordingly, on April 13, 1998, complainant filed a formal complaint on

the bases of race (Black) and reprisal.

The agency issued a FAD dismissing complainant's complaint. The FAD

framed complainant's claims as follows<3>:

In November 1992, management threatened her by advising her that she

was making it difficult for herself because she wanted to know why she

was performing two of the major duties of a GS-9 position description;

why the employee in the GS-9 position was not performing these duties;

and why she was being treated differently from her White coworker.

In February 1994, after talking to the Union about racial

discrimination, her February 8, 1994, approved requests for Sick Leave

were changed to Annual Leave by her supervisor without her knowledge.

On November 16, 1994, her performance was changed from Outstanding

to Exceptional. Management denied her appeal because she had used

Sick Leave, despite the fact that White coworkers who had Outstanding

ratings had used more Sick Leave than she.

On May 31, 1995, she was advised by the EEO Counselor that she did not

have substantial information to file an EEO complaint; the Counselor

failed to inform her of her appeal rights; and she was not provided

the opportunity to file a formal EEO complaint.

Complainant was assigned the work of a White female coworker who left

the Agency in 1993. Complainant was offered the position. However,

six months later, the position was abolished but she continued to

perform the GS-9 responsibilities through March 1998.

From 1992 through March 1998, management continually refused to allow

complainant to change her position description to reflect the work

she was actually performing. This would have provided complainant

the opportunity to acquire the same grade level as her former White

coworker.

Management continually denied complainant's requests for a desk audit

from 1992 until late 1997, during which time she sought EEO counseling.

After complainant requested an audit, two of her responsibilities in her

original GS-7 position description were assigned to other employees.

Complainant alleges, however, that she continued to perform these

responsibilities for several months and provided assistance and training

to a GS-12 White male on how to perform these tasks.

From 1992 until May 1997, complainant was forced to do all the work

as project manager for FedEx, without recognition, even though the

responsibilities were taken from her as a GS-7 and given to a GS-12

White male in 1994.

When a position description that matched complainant's responsibilities

was rated a GS-9 with a different title and job series, the Office of

Human Resources Management advised her that she could not acquire this

position as an accretion of duties. Complainant alleges the position

was posted and awarded to her on April 6, 1998, only after she contacted

the Office of Equal Rights about filing a formal EEO claim.

Complainant's manager refused to meet with neutral third parties to

resolve her issues and advised her that she would never promote her

because she had addressed her allegations of racial discrimination

with the Union.

After complainant made complainants of racial discrimination to EEO

on the failure of management to promote her to the same level as her

White coworker, several job functions that she had been performing as

a GS-7 were given to GS-12 white males. Complainant alleges she was

required to train a White male and assist him in performing his tasks

for several months.

On January 7, 1997, complainant's training request was canceled and

she was advised that there would be no more overtime.

On January 13, 1997, after complainant again requested her position

description be changed to reflect her duties, her second level

supervisor told her new supervisor that he was not going to do anything

about her requests for promotion, change in position description,

or desk audit.

In April 1997, complainant's requests for attending a job related

conference was refused after she expressed concern about racial

discrimination to her manager.

On April 4, 1997, complainant advised her supervisor about a job-related

conference. Complainant alleges she acquired training and cost related

information according to her supervisor's request, but she was denied

the opportunity to attend.

On May 5, 1997, complainant was advised of a new GSA contract for the

FedEx account and informed that she should attend a meeting because

she was the project officer for the account, despite the fact that

the FedEx responsibilities had been given to a White Male, GS-12.

Complainant alleges that the FedEx responsibilities, however, remained

in her position description and she had performed these duties in

the past.

On May 13, 1997, a White female coworker, GS-13, advised her to remove

the name of another White female, GS-12, coworker off all Requisition

and Commitment for Services and Supplies (40-1's) that she had done

and to place her name on them as project officer.

The agency dismissed claims 1, 2, and 3 for untimely counselor contact.

According to the FAD, the record did not indicate that complainant

contacted an EEO counselor within forty-five days of the alleged

incidents. Further, complainant alleged that on May 31, 1995 she

attempted to discuss the issues with a counselor. Claim 4 was dismissed

for failure to state a claim. Specifically, the agency indicated that

complainant was allowed to file a complainant, thereby rendering the

claim moot. The remaining claims, 5 - 18, were also dismissed for

failure to state a claim.

Claims 1, 2, and 3

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 Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). 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.

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.

In the instant case, claims 1, 2, and 3 occurred in 1992 and 1994.

The nature of the claims indicate that complainant reasonably suspected

discrimination at the time of the incidents. The record reflects that

complainant's counselor contact was well beyond the forty-five day time

limitation. Complainant does not contend that she was unaware of the

time limitation for contacting an EEO Counselor. Accordingly, we do

not find sufficient reason for extending the time limit. The agency's

decision to dismiss claims 1, 2, and 3 for untimely counselor contact

is AFFIRMED.

Claim 4

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an

agency shall dismiss a complaint that fails to state a claim. An agency

shall accept a complaint from any aggrieved employee or applicant for

employment who believes that he or she has been discriminated against by

that agency because of race, color, religion, sex, national origin, age or

disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's

federal sector case precedent has long defined an "aggrieved employee"

as one who suffers a present harm or loss with respect to a term,

condition, or privilege of employment for which there is a remedy.

Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April

22, 1994).

In claim 4, complainant alleged that she was not provided an opportunity

to file a formal EEO complaint. She was advised that she did not have

sufficient information to file a complaint, and was not informed of

her appeal rights. The agency dismissed claim 4 on the grounds that it

failed to state a claim. According to the FAD, because complainant was

allowed to file a complaint, the claim was rendered moot. The Commission

finds that the agency properly dismissed claim 4 for failure to state

a claim, albeit for a different reason. When a complainant raises an

allegation of improper processing, the agency is required to refer

the complainant to the agency official responsible for the quality

of complaint processing and that these individuals should earnestly

attempt to resolve dissatisfaction with the complaints process as early

as possible. See EEOC Management Directive (MD) 110 (5-25), as revised,

November 9, 1999; Gaines v. Dept. of Navy, EEOC Request No. 05970321

(June 12, 1997). Therefore, the agency's dismissal of claim 4 for

failure to state a claim is AFFIRMED.

Claims 5 - 18

As an initial matter, the Commission notes that several of complainant's

claims encompass the more general issue of failure to promote, where

complainant claims that she performs duties and responsibilities which

exceed her job description and title. Accordingly, we find that the

claims addressing duties, job description, and desk audits (claims 5-12,

and 17) should not be treated as separate and distinct claims, but

part of complainant's broader claim of failure to promote. See Meaney

v. Department of the Treasury, EEOC Request No. 05940169 (November 3,

1994); Ferguson v. Department of Justice, EEOC Request No. 05970792

(March 20, 1999). The Commission finds that complainant's failure to

promote claim alleges a harm a loss with respect to a term, condition,

or privilege of her employment. Therefore, the agency's decision to

dismiss claims 5 - 12, and 17 for failure to state a claim was improper

and is REVERSED.

The only proper questions in determining whether an claim is within the

purview of the EEO process are (1) whether the complainant is an aggrieved

employee and (2) whether she has alleged employment discrimination

covered by the EEO statutes. An employee is "aggrieved" is she has

suffered direct and personal deprivation at the hands of the employer.

See Hobson v. Department of the Navy, EEOC Request No. 05891133 (March 2,

1990). In claims 13, 15 and 16 complainant alleged that her requests for

training were refused. These claims are sufficient to render complainant

an aggrieved employee. Because complainant has alleged that the adverse

action was based on race and reprisal, she has raised claims within the

purview of the EEOC regulations. Accordingly, the agency's decision to

dismiss claims 13, 15, and 16 for failure to state a claim was improper

and is REVERSED.

In claims 14 (remark from second level supervisor to new supervisor)

and 18 (told to remove name of co-worker on forms) complainant has

not stated how the alleged agency actions caused her a harm or loss.

Further, with respect to claim 14, we note that the Commission has

repeatedly found that remarks or comments unaccompanied by a concrete

agency action are not a direct and personal deprivation sufficient to

render an individual aggrieved for the purposes of Title VII. See Backo

v. United States Postal Service, EEOC Request No. 05960227 (June 10,

1996); Henry v. United States Postal Service, EEOC Request No. 05940695

(February 9, 1995). Therefore, we find that the dismissal of claims 14

and 18 was proper and is AFFIRMED.

The agency's decision dismissing claims 1 - 4, 14, and 18 is AFFIRMED.

The agency's decision dismissing claims 5 - 13, and 15- 17 is REVERSED and

we REMAND claims 5 - 13 and 15 - 17 to the agency for further processing

in accordance with this decision and applicable regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant 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 complainant

requests a final decision without a hearing, the agency shall issue a

final decision within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and an

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 (K1199)

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

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant 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. �� 1614.407

and 1614.408. 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 complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).

The request or opposition must also include proof of service on the

other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)

This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR

DAYS from the date that you receive this decision 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. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (Z1199)

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:

February 15, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2With respect to the date of initial contact, we note that the FAD does

not provide a date but cites complainant's reference to May 31, 1995.

The EEO Counselor's Report presents two dates: on July 18, 1997 an

attempted resolution by OER occurred and on December 1, 1997, EEO

counseling was initiated.

3Although complainant's claims were not numbered in the FAD, we number

them here for clarification.