01a53493
08-30-2005
Harriet W. Miller v. Department of the Navy
01A53493
August 3, 2005
.
Harriet W. Miller,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A53493
Agency No. DON (MC) 05-67004-00340
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 10, 2005, dismissing her formal EEO complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On November 8, 2004, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful. Complainant
filed the instant formal complaint dated December 22, 2004, and a
corrected complaint on January 11, 2005.
In its March 10, 2005 final decision, the agency determined that
complainant claimed she was discriminated against on the bases of race,
age, and sex, and that the formal complaint was comprised of nine claims,
identified as follows:
On October 15, 2004, complainant's supervisor presented her with a
draft copy of her position description and performance appraisal that
did not reflect the job duties that she performs;
On August 17, 2002, complainant was forced by management to take
hand-me-down duties of four Caucasian females (GS-07 employees who were
promoted to GS-09), when complainant had been a GS-09 for several years.
In July 2003, complainant was moved, and management promoted a GS-7/9
Caucasian female into her previous position and did not offer the
position to her;
Complainant was denied the opportunity to return to her previous
position, but one Caucasian female and one Caucasian male were rehired
as contractors after they retired in November 2003 and were placed back
into their same positions;
Complainant was pushed over into Customer Relations Management in
retaliation against her for a letter she sent to management dated
October 17, 2003;
Complainant was then moved to Distribution Management for six months
without any job duties or functions;
Management detailed complainant on August 2, 2002 to GFM/GFE Section
for over a year, doing GS-2005-06 Supply Technician functions; and
she was provided a position description dated August 13, 2002, which
was a template position describing the duties of a job with no rank,
series, no grade and no signature;
Complainant was given a performance rating on a position description for
a job that did not reflect her grade and series on October 6, 2003; and
Complainant's last position description was a GS-2001-09 General Supply
Specialist and management placed her in lower grade performance standards
identical to that of a GS-2005-06 Supply Technician.
In its decision, the agency dismissed claim (1) on the grounds that it
involves a proposed agency action and claims (2) - (9) on the grounds of
untimely EEO Counselor contact. Regarding claim (1), the agency found
that the draft position description was a proposal or preliminary step
to taking an action and was presented only as a draft. Regarding claims
(2) - (9), the agency determined that complainant's initial EEO Counselor
contact on November 8, 2004, was more than 45-days beyond each of the
incident dates of alleged discrimination, and/or incident dates were
not specified for the claims, thereby rendering the initial EEO contact
untimely.
On appeal, complainant contends that complainant continues to work under
an inaccurate position description, and that the October 15, 2004 draft
position description is the only one she has been given and that she
is still working under it. Complainant also contends that claims (2) -
(9) are part of a continuing violation.
Claims (2) - (5), and (7) - (8)
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.
The record indicates that the alleged discriminatory events in claims (2),
(3), (4),(5), (7) and (8) occurred from August 2002 through October 2003,
but that complainant did not initiate contact with an EEO Counselor until
November 8, 2004, which in each instance is well beyond the forty-five
(45) day limitation period. Complainant contends that these claims are
part of a continuing violation. However, the alleged discriminatory
events in claims (2), (3), (4),(5), (7) and (8) were discrete acts
occurring outside the limitations period. Complainant has provided no
persuasive arguments or evidence to warrant an extension of the time
limit for initiating EEO contact on appeal. The Commission determines
that claims (2), (3), (4),<1> (5), (7) and (8) were properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(2).
Claims (1), (6), and (9)
With regard to claim (1), (6), and (9), the Commission determines that
there is insufficient evidence of record to determine whether or not
claim (1) was merely a proposed action and whether complainant made
timely EEO Counselor contact for claims (6) and (9).
In claim (1), complainant claims that she received a draft copy of her
position description and performance appraisal that did not reflect her
job duties, and that she is still working under that position description.
In this case, based upon complainant's unrebutted statement that she
continues to work under the �draft� position description, it appears
that the position description was not a proposed action but was actually
implemented. Therefore, we hereby remand claim (1) to the agency to
supplement the record with evidence as to whether the �draft� position
description was actually utilized as complainant's position description.
Regarding claims (6) and (9), we find no conclusive evidence in the record
to indicate when the claimed incidents occurred. Complainant provides
some information on appeal as to these claims; however, the dates of
the incidents remain uncertain.
Consequently, we remand claims (1), (6), and (9) to the agency to
supplement the record with evidence as to whether complainant's draft
position description was implemented and whether complainant made EEO
Counselor contact within 45 days of the dates of incident for claims
(6) and (9).
Accordingly, the agency's decision to dismiss complainant's claims (2),
(3), (4),(5), (7), and (8) is AFFIRMED. The agency's decision to dismiss
claims (1), (6), and (9) is VACATED, and those claims are REMANDED for
further processing in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall undertake a supplemental investigation (a) to
determine whether complainant's draft position description in claim (1)
was implemented as her actual position description, and (b) whether
complainant made EEO Counselor contact within 45 days of the date
she was �moved to Distribution Management� and placed in �performance
standards identical to that of a GS-2005-06 Supply Technician� in claims
(6) and (9). The agency shall supplement the record with any relevant
documentation obtained as a result of its investigation, specifically
including affidavits from complainant, complainant's relevant supervisors,
and any other relevant EEO and Human Resources personnel.
2. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue a notice of processing and/or a new decision
concerning claims (1), (6), and (9).
A copy of the agency's notice of processing and/or new decision must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (T0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 30, 2005
__________________
Date
1We note that claims (3) and (4), though
listed separately by complainant and the agency, represent only one
claimed incident of discrimination.