Kathleen A. Dawson, Appellant,v.Bill Richardson, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionOct 15, 1999
01996111 (E.E.O.C. Oct. 15, 1999)

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).