Kim M. Tinney, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMar 13, 2000
01986760 (E.E.O.C. Mar. 13, 2000)

01986760

03-13-2000

Kim M. Tinney, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Kim M. Tinney v. Department of Transportation

01986760

March 13, 2000

Kim M. Tinney, )

Complainant, )

)

v. ) Appeal No. 01986760

) Agency No. 5-98-5127

)

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

____________________________________)

DECISION

On September 9, 1998, complainant filed a timely appeal with this

Commission from a final agency decision pertaining to her complaint

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.<1> The

agency framed complainant's complaint as alleging that she was subjected

to discrimination on the basis of sex (female) when:

In May 1998, she was removed from the Air Route Traffic Controller

Training Program;

During training as an air traffic controller specialist at the Salt

Lake City Air Route Traffic Controller Training Center (ARTCC), she

was subjected to frequent negative sex-based comments about females;

Her training write-ups at ARTCC were more heavily documented than

those of her male counterparts;

She was not afforded the same opportunity to receive skill enhancement

training on her sector at ARTCC as were her male counterparts;

She was not allowed to train for as many hours per week as her male

counterparts; and

She was not granted holiday leave for the Thanksgiving and Christmas

season in 1997, but a male counterpart was granted leave.

By letter dated July 27, 1998, the agency dismissed claim (1) pursuant

to EEOC Regulations because it raised the same matter as that raised in a

negotiated grievance procedure that permits allegations of discrimination,

and dismissed claims (2) through (6) for untimely EEO Counselor

contact. Specifically, the agency determined that, concerning claim (1),

complainant had filed a grievance on June 10, 1998, regarding the removal

referenced in her EEO complaint filed on June 30, 1998. The agency also

determined that because complainant's May 22, 1998 initial EEO Counselor

contact occurred more than forty-five days after complainant's training

was suspended on March 4, 1998, the alleged discriminatory actions that

occurred during her training and raised in issues (2) through (6) were

untimely. Additionally, the agency determined that claims (5) and (6)

should be dismissed because they were not raised with an EEO Counselor

during informal counseling.

On appeal, complainant submits a statement from her EEO Counselor that

there "has been some confusion" with regard to the deadlines for EEO

counseling. According to the statement, complainant first approached

the EEO Counselor with allegations of discrimination on March 5, 1998,

after her suspension from training on February 26, 1998, but did not

file a formal complaint because it was concluded that all trainees

"are �suspended' from training while a Review Board meets to determine

a plan of action." The statement also indicates that complainant again

contacted the EEO Counselor on May 29, 1998, after she was removed from

the training program on May 22, 1998, and then filed her formal complaint

after further EEO counseling. We note from the record that, in addition

to generally describing complainant's allegations of discrimination

during her training, the initial Counselor's report states that the

Counselor suggested to complainant that she "wait till the �new' board

reached a decision to proceed," and that the initial complaint be closed.

Claim (1)

EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is

employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a

collective bargaining agreement that permits claims of discrimination to

be raised in a negotiated grievance procedure, a person wishing to file a

complaint or grievance on a matter of alleged employment discrimination

must elect to raise the matter under either part 1614 or the negotiated

grievance procedure, but not both. An aggrieved employee who files

a grievance with an agency whose negotiated agreement permits the

acceptance of grievances which allege discrimination may not thereafter

file a complaint on the same matter under this part 1614 irrespective

of whether the agency has informed the individual of the need to elect

or whether the grievance has raised an issue of discrimination.

In its final decision, the agency dismissed claim (1) on the grounds that

it concerned an issue already raised by appellant in a grievance dated

June 10, 1998. The record shows that a grievance was filed regarding

the issue raised in claim (1). Nevertheless, despite the fact that the

agency provided copies of the grievance in question, it failed to provide

documentation to show that allegations of discrimination may be raised

through the grievance process. Clearly, it is the burden of the agency

to have evidence or proof to support its final decision. See Marshall

v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).

Consequently, we reverse the agency's dismissal of claim (1).

Claims (2) through (6)

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 days of the date of

the matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five 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 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.

The Commission has held that the time requirements for initiating EEO

counseling could be waived as to certain allegations within a complaint

when the complainant alleged a continuing violation; that is, a series

of related discriminatory acts, one of which fell within the time period

for contacting an EEO Counselor. See McGivern v. U.S. Postal Service,

EEOC Request No. 05901150 (December 28, 1990); Starr v. US PS, EEOC

Appeal No. 01890412 (April 6, 1989).

A determination of whether a series of discrete acts constitutes

a continuing violation depends on the interrelatedness of the past

and present acts. Berry v. Board of Supervisors, 715 F.2d 971, 981

(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). It is necessary to

determine whether the acts are interrelated by a common nexus or theme.

See Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308

(June 13, 1989); Verkennes v. Department of Defense, EEOC Request

No. 05900700 (September 21, 1990); Maldonado v. Department of the

Interior, EEOC Request No. 05900937 (October 31, 1990). Should such

a nexus exist, appellant will have established a continuing violation

and the agency would be obligated to "overlook the untimeliness of the

complaint with respect to some of the acts" challenged by appellant.

Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).

In the present case, the agency dismissed complainant's claims because

her May 22, 1998 EEO Counselor contact was more than forty-five days after

the end of her March 4, 1998 suspension from training. It is clear from

the record, however, that complainant first made EEO Counselor contact on

March 5, 1998, and, though specifically complaining of her suspension,

provided the Counselor a general description of the training-related

issues raised in claims (2) through (5). As noted above, complainant

failed to file a formal complaint regarding the issues raised in

her initial counseling when she was dissuaded from doing so by the

EEO Counselor. The Commission has previously held that an agency

may not dismiss a complaint based on a complainant's untimeliness,

if that untimeliness is caused by the agency's action in misleading or

misinforming the complainant. See Wilkinson v. United States Postal

Service, EEOC Request No. 05950205 (March 26, 1996).

Furthermore, we note that while specific dates are not indicated for

claims (2) through (5), the agency states that complainant's training

was suspended on March 4, 1998. Since claims (2) through (5) involve

recurring actions taken by the agency during complainant's training,

complainant's EEO contact on March 5, 1998, one day after her training

ended appears to be timely. While not specifically making a determination

regarding whether the subject claims constitute a continuing violation,

the agency notes that claims (2) through (5) all relate to complainant's

training. Consequently, we find that the agency's dismissal of claims

(2) through (5) for untimely EEO contact was improper.

With regard to claim (6), we find that complainant's EEO contact appears

to be untimely. Assuming, arguendo, that complainant raised claim (6)

with the EEO Counselor when she initiated EEO contact on March 5, 1998,

the issue involved, i.e., the denial of leave for the Thanksgiving and

Christmas season in 1997, occurred more than forty-five (45) days before

that contact. Complainant failed to present any justification to extend

the applicable time limit. Accordingly, the agency's dismissal of claim

(6) for untimely EEO contact was proper and is hereby AFFIRMED.

Finally, we find that the agency's determination that claim (5) should

be dismissed because it was not raised during informal counseling

was also improper. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)) states,

in pertinent part, that an agency shall dismiss a complaint which raises

a matter that has not been brought to the attention of an EEO Counselor,

and is not like or related to a matter on which the complainant has

received counseling. A later claim or complaint is "like or related"

to the original complaint if the later claim or complaint adds to or

clarifies the original complaint and could have reasonably been expected

to grow out of the original complaint during the investigation. See Scher

v. United States Postal Service, EEOC Request No. 05940702 (May 30, 1995);

Calhoun v. United States Postal Service, EEOC Request No. 05891068 (March

8, 1990). As noted above, complainant first made EEO Counselor contact

on March 5, 1998 and provided the EEO Counselor a general description

of the training-related issues. Claim (5), which refers to the number

of hours per week complainant was allowed to train, clearly relates to

the other training issues raised in claims (2) through (4). Moreover,

after complainant again contacted the EEO Counselor on May 29, 1998, she

specifically mentioned the training disparity with her male counterparts

alleged in claim (5). Therefore, we find that claim (5) was improperly

dismissed on the grounds that it was not raised with the EEO Counselor.

Accordingly, the agency's final decision dismissing claims (1) through

(5) is REVERSED. Claims (2) through (5) are hereby REMANDED to the

agency for further processing in accordance with the Order below.

The agency's dismissal of claim (6) is hereby AFFIRMED.

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:

March 13, 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.