01994145
11-05-1999
Lisa L. Jordan, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Lisa L. Jordan v. Department of the Navy
01994145
November 5, 1999
Lisa L. Jordan, )
Appellant, )
)
v. ) Appeal No. 01994145
) Agency No. 99-65888014
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
We find that the agency's March 19, 1999 decision dismissing a portion of
appellant's complaint on the grounds of untimely EEO counselor contact is
proper, pursuant to the provisions of 29 C.F.R �1614.107(b). We further
find that the agency's decision to dismiss a portion of the complaint
for untimely EEO counselor contact is vacated, for the reasons set forth
below.
The record shows that appellant sought EEO counseling on November 24,
1998, alleging that she had been discriminated against on the bases of
sex (female), and reprisal when:
(a) her supervisor informed her on November 24, 1998, that she would
not be level II DAWIA certified;
(b) she was harassed by a former supervisor when she was issued a "Work
Contract" in July 1998;
(c) she was harassed by management in August/September 1998, while under
medical treatment; and
(d) she was harassed while working as an on-site contractor by a
government employee in 1994.
The record further shows that appellant alleged that the harassment
started in April 1998, and that after being denied sick leave in
September 1998, she complained about the harassment. Finally, appellant
acknowledged that she did not complain about the harassment because she
feared losing her job.
Appellant subsequently filed a formal complaint of discrimination
concerning the issues she raised with the EEO counselor. The agency
issued a final decision accepting allegation (a) for investigation.
However, the scope of the investigation was limited to the basis of sex
after the agency found that appellant had failed to show that she had
engaged in prior EEO activity which would support her reprisal claim.
Allegations (b), (c), and (d) were dismissed on the grounds of untimely
EEO counselor contact.
On appeal appellant contends, inter alia, that her initial EEO counselor
contact was not on November 24, 1998, but rather on October 2, 1998,
and October 6, 1998.
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period
for contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).
A review of the record shows that in allegations (b) and (d)
appellant claims being the victim of harassment in July 1998, and in
1994, respectively. The EEO Counselor's Report shows that appellant
acknowledged that the harassment against her started in April 1998.
Moreover, appellant stated that although she had been harassed in 1994,
she did not complain for fear of losing her job.
Based on the record, we find that appellant suspected discrimination
more than 45 days prior to her EEO counselor contact. She should have
sought EEO counseling within the 45-day time limit provided by EEOC
Regulations but failed to do so. We have previously held that mere
fear of reprisal is insufficient justification for extending the time
limitation for contacting an EEO counselor. Duncan v. Department of
Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998). Therefore,
the dismissal of allegations (b) and (d) was proper.<1>
A review of allegation (c) shows that appellant claims that she was
harassed during the August - September 1998 time frame. Appellant
acknowledged that after being denied sick leave in September 1998,
she complained about the harassment. On appeal appellant contends
that her initial EEO counselor contact was held on October 2, 1998
and October 6, 1998. She further claims that the initial interview
was held on November 24, 1998. Based on the foregoing, we find that
the record is insufficient to determine whether appellant's initial
EEO counselor contact was held on October 2, 1998, or on November 24,
1998. The agency failed to provide on appeal evidence sufficient to
establish the correct date of appellant's initial EEO counselor contact.
Under these circumstances the Commission is unable to determine that
appellant's EEO counselor contact was untimely.
Finally, we agree with the agency's dismissal of the basis of reprisal
from appellant's complaint of discrimination. A review of the record
shows that appellant has failed to provide evidence sufficient to
contradict the agency's finding that she has not engaged in protected
activity under EEOC Regulations.
Accordingly, the final agency decision dismissing allegations (b) and
(d) was proper and is hereby AFFIRMED. The dismissal of the basis of
reprisal from appellant's complaint is also AFFIRMED. The dismissal of
allegation (c) was not proper and it is hereby REVERSED. Allegation (c)
is REMANDED for a supplemental investigation.
ORDER
The agency is ordered to conduct a supplemental investigation regarding
appellant's claim that she contacted the EEO counselor on October 2,
1998, and October 6, 1998. Within sixty (60) days of the date this
decision becomes final, the agency shall request and provide affidavits
from appellant and the appropriate agency officials. These affidavits
will state the date of appellant's EEO counselor contact as well as
the persons involved in said contact. The agency shall also inquire
the specific dates of the August - September 1998 harassment incidents
raised in allegation (c). If during the course of the supplemental
investigation the agency finds that appellant did not contact the EEO
counselor within the 45-day time limit, it shall then issue a final
decision dismissing the allegation (c) and will provide appellant with all
relevant information concerning his appeal rights. However, if during
the course of its supplemental investigation, the agency becomes aware
that appellant in fact contacted an EEO counselor within the 45-day time
limit, it shall then process allegation (c) pursuant to the provisions
of 29 C.F.R.�1614.108. A copy of the agency's letter of acknowledgment
to appellant and/or a copy of the final agency decision 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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:
11/05/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The Commission notes that appellant argues that her initial EEO
Counselor contact occurred in October 1998, and not in November 1998,
as determined by the agency. Assuming, arguendo, that appellant indeed
initiated EEO contact in October 1998, this contact would nevertheless
be untimely in regard to the matters raised in allegations (b) and (d).