01996111
10-15-1999
Kathleen A. Dawson, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Kathleen A. Dawson v. Department of Energy
01996111
Kathleen A. Dawson, )
Appellant, )
)
v. ) Appeal No. 01996111
) Agency No. 99 (072) AL
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
______________________________)
DECISION
On August 5, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received on July 12, 1999, pertaining
to a complaint of unlawful employment discrimination pursuant to Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The Commission accepts appellant's appeal in accordance with EEOC
No. 960.001.
The record reflects that on March 24, 1999, appellant initiated
contact with an EEO Counselor. During the counseling period, appellant
alleged that; (1) her position as team leader was abolished and her
responsibilities were redistributed, (2)she was not being assigned duties
reflecting the GS-14 level and (3) she had to report to an employee who
is below her grade level.
On or about May 25, 1999, appellant filed a formal complaint, alleging
that she was the victim of unlawful employment discrimination on the
basis of reprisal. Appellant's complaint was comprised of the matter
for which she underwent EEO counseling, discussed above.
The agency, on July 8, 1999, issued a final decision dismissing allegation
one of appellant's complaint, for failure to initiate timely contact
with an EEO Counselor. The agency found that the alleged discriminatory
event occurred during the month of March 1998, and that appellant's
initial EEO Counselor contact on March 24, 1999, was more than forty-five
days after the matter raised in the allegation purportedly occurred.
The agency, in their final decision, found that appellant failed to
initiate timely contact with an EEO Counselor as per allegation one in
her complaint. 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.
Furthermore, it is well-settled law that where, as here, there is an issue
of timeliness, "the agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness."
Williams v. Department of Defense, EEOC Request No. 05920506 (August
25, 1992). Moreover, where, as here, a complainant alleges recurring
incidents of discrimination, "an agency is obligated to initiate an
inquiry into whether any allegations untimely raised fall within the
ambit of the continuing violation theory." Guy v. Department of Energy,
EEOC Request No. 05930703 (December 16, 1993) (citing Williams). As the
Commission further held in Williams, where an agency's final decision
fails to address the issue of continuing violation, the complaint
"must be remanded for consideration of this question and issuance of
a new final agency decision making a specific determination under the
continuing violation theory."
In the case at bar, the agency, in its decision and on appeal, has failed
to address whether or not allegation one of appellant's complaint falls
within the ambit of the continuing violation theory. Therefore, the
agency must determine on remand whether or not allegation one comprises
part of a continuing violation.<1>
Accordingly, the agency's decision to dismiss allegation one of
appellant's complaint was improper and is REVERSED. Appellant's complaint
is REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
The agency is ordered to take the following actions:
1) within fifteen calendars days of the date this decision becomes
final, the agency shall contact appellant requesting the date (s) on
which she first had to report to a lower grade employee and when she
first learned she was not being assigned duties commensurate with her
grade and experience. Appellant shall have fifteen calendar days
from her receipt of the agency's request within which to respond.
Appellant shall provide the dates, as well as specify the manner in
which she first suspected the alleged discrimination;
2) the agency shall supplement the record with evidence regarding
whether EEO information was on display where appellant would or should
have seen the information. The agency shall also supplement the
record with evidence regarding the specific elements of the allegation
raised in complaint 99 (102) AL, which is identical to allegation one
on the instant appeal. And the agency will investigate to determine if
allegation one of the instant appeal falls within the ambit of the
continuing violation theory.
The agency must issue a new final agency decision (FAD) and/or notice
of processing within forty-five day calendar days. A copy of the FAD
and/or notice of processing must be sent to the compliance Officer as
referenced below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. 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.
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 (S0993)
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:
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
FOR OFO INTERNAL CIRCULATION ONLY
FOR PROCEDURAL CASES
TO: CARLTON M. HADDEN, ACTING DIRECTOR
OFFICE OF FEDERAL OPERATIONS
APPEAL NUMBER: 01996111
AGENCY NUMBER: 99 (072) AL
(APPROVED) (DATE)
REQUEST NUMBER:
HEARING NUMBER:
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY): Ralph A. Suris
October 15, 1999
(SUPERVISOR: Marjorie Borders
(DIVISION DIRECTOR):
1.) (APPELLANT(S) Kathleen A. Dawson
2.) (AGENCY) Department of Energy
3.) (DECISION) REVERSED
4.) (STATUTE(S) Title VII
5.) (BASIS(ES) OR
6.) (ISSUE(S) A4, D3 & C2
7.) (TYPIST/DATE/DISK) RS1/ October 15, 1999
SPELL CHECK: YES
(PLEASE CHECK ALL APPLICABLE CODES)
PROCEDURAL CODES
LETTER CLOSURE CODES
X 3K - PROCEDURAL DECISION
? 3N - APPEAL DENIED/DISMISSED
? 3P - ADVERSE INFERENCE RAISED
? 4H - OFO AFFIRMED FAD
X 3M - OFO REVERSED AND REMANDED
? 4J - OFO MODIFIED FAD
? 4Q - COMPLIANCE REQUIRED
? 3B - FAD RESCINDED
? 3C - DUPLICATE DOCKET NUMBER
? 3D - WITHDRAWAL
? 3E - COMPLAINT SETTLED
? 3G - OTHER LETTER CLOSURE
[REVISED AS OF 4/21/98]
1The agency, in their decision and on appeal, has failed to provide the
Commission with a scintilla of evidence that allegation one is currently
pending before the agency. Therefore, the Commission will not address
the agency's alternative grounds for dismissal of allegation one pursuant
to 29 C.F.R. �1614.107(a).