05970351
02-26-1999
Joan N. Simmons, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Joan N. Simmons v. Department of the Treasury
05970351
February 26, 1999
Joan N. Simmons, )
Appellant, )
)
v. ) Request No. 05970351
) Appeal No. 01963363
Robert E. Rubin, ) Agency No. 94-1185
Secretary, )
Department of the Treasury, )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On January 6, 1997, appellant timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Joan
N. Simmons v. Robert E. Rubin, Secretary, Department of the Treasury,
EEOC Appeal No. 01963363 (December 3, 1996), received by appellant on
December 9, 1996. EEOC Regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law, regulation or material fact, or
misapplication of established policy, 29 C.F.R. �1614.407(c)(2); and the
previous decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
below, the Commission GRANTS appellant's request.
ISSUE PRESENTED
Whether the agency improperly dismissed seven of appellant's allegations
for failure to timely contact an EEO counselor.
BACKGROUND
In Simmons v. Department of the Treasury, EEOC Request No. 05930550
(December 16, 1993), the Commission ordered the agency to afford appellant
the opportunity to contact an EEO counselor in connection with her
allegations of reprisal, and to process those reprisal allegations as
a new complaint if her contact with the counselor was timely.
In a letter dated February 28, 1994, the agency's EEO director informed
appellant of the Commission's order and indicated that it would refer
her to a district office for assignment of an EEO counselor. The notice
further stated that if appellant wished to pursue the matter, she had
to contact the local EEO program manager within 45 days of her receipt
of that letter. Appellant was also notified that her failure to contact
the EEO program manager within the 45-day time limit would result in the
dismissal of her reprisal allegations. Although the letter was sent via
certified mail, the record does not include a certified return receipt
or any other indication of when appellant actually received the letter.
In due course, appellant contacted an EEO counselor and filed a formal
complaint. A report of counseling dated May 12, 1994, specified that
appellant first sought counseling on February 22, 1994.
Appellant and the agency corresponded for nearly a year regarding
amendments of bases and issues. Finally, in a letter to appellant dated
January 27, 1995, the local EEO director indicated that he would accept
fourteen allegations for processing, including the six allegations at
issue in this request. The agency completed its investigation of the
complaint in December 1995.
The agency issued appellant two letters, both of which were dated
February 26, 1996. In the first letter, the agency indicated that,
during the course of the investigation, it had determined that a
portion of appellant's complaint was untimely. It further stated that
it had investigated seven of the fourteen allegations that it had
originally accepted in January 1995. The second letter constituted
the agency's final decision dismissing the allegations now before us.
Those allegations were identified in the previous decision as allegations
(2a), (2b), (2e), (2f), (2g), (2h), and (2i). The dismissed allegations
concerned events that occurred between April 1991 and February 20, 1992,
as well as receipt of unfavorable performance appraisals between April
1991 and April 1993 (allegation (2e)), and ongoing harassment since
February 27, 1992 (allegation (2i)). The agency's ground for dismissing
these allegations was that appellant failed to contact an EEO counselor
within 30 days of the alleged discriminatory events, in accordance with
the regulations that were in effect at the time. The agency found that
appellant initially contacted an EEO counselor on February 22, 1994.
It ultimately concluded that appellant did not contact a counselor until
several years after the incidents in question.
The previous decision affirmed the agency's dismissal of allegations
(2a), (2b), (2e), (2f), (2g), and (2h). It agreed with the agency that
appellant failed to show that she timely contacted an EEO counselor. With
respect to allegation (2i), the previous decision found that the dates
of the incidents comprising that allegation could not be ascertained,
and remanded that allegation in order to clarify the dates of occurrence.
In her request for reconsideration, appellant challenges the dismissal
of allegations (2a), (2b), (2e), (2f), (2g), and (2h). She states in her
request that the agency "falsely concocted" the date of February 22, 1994,
as the date on which she first sought counseling. The agency responded
that appellant failed to submit any reports or acceptance letters that
would conclusively prove that she had timely contacted a counselor in
connection with the dismissed allegations.
ANALYSIS AND FINDINGS
In dismissing a complaint for failure to timely contact an EEO counselor,
the burden of proof is on the agency to show that appellant did not
initiate contact with an EEO counselor until after the expiration of the
45-day time limit prescribed in 29 C.F.R. � 1614.105(a)(1). See Henry
v. Department of the Navy, EEOC Request No. 05941017 (February 23, 1996).
In this case, the agency based its dismissal upon its findings that the
incidents at issue in allegations (2a), (2b), (2e), (2f), (2g), (2h),
and (2i) occurred between 1991 and April 1993, and that appellant did
not contact an EEO counselor on these matters until February 22, 1994.
The decision in EEOC Request No. 05930550 apparently designated the date
that appellant received that decision as the date from which the 45-day
period for contacting an EEO counselor with respect to allegations (2a),
(2b), (2e), (2f), (2g), (2h), and (2i) would begin to run. That decision
was inartfully worded in that it did not give a reason for what appears
to be an arbitrary creation of a new occurrence date for the allegations
in question. The agency relied upon EEOC Request No. 05930550 when
it prepared the notice dated February 28, 1994, directing appellant to
contact the EEO program manager within 45 days of receipt. That letter
states, in pertinent part:
In accordance with [the Commission's decision in EEOC Request
No. 05930550], we are referring you to the [EEO program manager] for
assignment of an EEO Counselor. If you wish to pursue this matter, you
must timely contact the EEO program manager. Failure to contact [the
EEO program manager] within 45 days of your receipt of this letter could
result in the dismissal of your reprisal allegations (emphasis added).
Since the letter was addressed to appellant, it is reasonable to assume
that she received it sometime after February 28, 1994, and that she
relied upon the agency's representation that she had 45 days from the
date of receipt to contact the EEO program manager. The 45-day time limit
is subject to estoppel. 29 C.F.R. � 1614.604(c). Under the doctrine of
estoppel, appellant's reliance on the February 28, 1994 notice precludes
the agency from using an actual occurrence date as the date from which
the 45-day time period for contacting a counselor begins to run, as it
appears to have done in its final decision dismissing allegations (2a),
(2b), (2e), (2f), (2g), (2h), and (2i). Jackson v. United States Postal
Service, EEOC Request No. 05940797 (April 10, 1996). In order for the
agency to dismiss these allegations for untimely counselor contact, it
would have to establish that appellant did not contact an EEO counselor
until more than 45 days after she received the February 28, 1994 letter.
The agency did not present a certified return receipt or any other
evidence establishing the actual date on which appellant received the
letter. The agency presented no argument or evidence that appellant
did not contact the EEO program manager until more than 45 days after
she received the letter. Although the counselor's report states that
appellant contacted a counselor on February 22, 1994, the agency failed
to explain how appellant could have contacted a counselor more than
six days before being given notice of her right to do so. Moreover,
the agency did not even make the argument that appellant's reliance
on the February 28th letter was unreasonable under the circumstances.
We therefore find that the agency failed to meet its burden of proof that
appellant's contact with an EEO counselor with respect to allegations
(2a), (2b), (2e), (2f), (2g), (2h), and (2i) was untimely. Accordingly,
we have no choice but to remand these allegations for processing.
CONCLUSION
After a review of appellant's request for reconsideration, the
agency's response thereto, the previous decision, and the entire
record, the Commission finds appellant's request meets the criteria of
29 C.F.R. �1614.407(c), and it is the decision of the Commission to
grant appellant's request. The decision of the Commission in Appeal
No. 01963363 is MODIFIED. The agency's final decision dismissing
allegations (2a), (2b), (2e), (2f), (2g), (2h), and (2i) is REVERSED.
These allegations are hereby REMANDED for processing in accordance with
our order below. There is no further right of administrative appeal
from a decision of the Commission on a request for reconsideration.
ORDER (E1092)
The agency shall process the allegations identified in EEOC Appeal
No. 01963363 as allegations (2a), (2b), (2e), (2f), (2g), (2h), and (2i)
in accordance with 29 C.F.R. �1614.108.<1> 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.
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:
Feb 26, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 Allegation (2i) concerns incidents that are closer in time to the date
that appellant received the February 28, 1994 notice than Allegations
(2a) through (2h). Since we are implicitly finding that allegations (2a)
through (2h) are timely, we must find allegation (2i) timely as well.
Appellant is reminded of her obligation to specifically identify
the incidents of humiliation she referenced in this allegation during the
investigation.