Lupe Smith, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionAug 2, 2000
01a03157 (E.E.O.C. Aug. 2, 2000)

01a03157

08-02-2000

Lupe Smith, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Lupe Smith v. Department of the Treasury

01A03157

August 2, 2000

Lupe Smith, )

Complainant, )

)

v. ) Appeal No. 01A03157

) Agency No. 00-2068TM

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

______________________________)

DECISION

Upon review, the Commission finds that portions of the complainant's

complaint were properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656

(1999) (to be codified and hereinafter referred to as EEOC Regulation

29 C.F.R. � 1614.107(a)(2)), for untimely EEO contact.<1> The record

discloses that the alleged discriminatory events occurred on May 8, 1997

and April 12, 1999 and the complainant did not initiate contact with an

EEO Counselor until September 22, 1999, which appears to be beyond the

forty-five (45) day limitation period.

On appeal, the complainant argues that she did not suspect discrimination

until September 1999, when the agency did not respond to her August

27, 1999 request for a certification so she could be given priority

consideration for federal jobs at other federal agencies. Specifically,

the record discloses that the complainant did allege below that the

agency discriminated against her by not providing her with a letter

certifying that the agency was not going to reinstate her so that she

could avail herself of the Interagency Career Transition Assistance

Program. The agency makes no comments in its response to this appeal.

EEOC Regulation at 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified

and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.105)

requires that complaints of discrimination be brought to the attention

of an EEO Counselor within 45-days of the date of the matter alleged to

be discriminatory. The Commission has adopted a �reasonable suspicion�

standard (as opposed to a �supportive facts� standard) to determine when

the 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.

The Commission agrees with the agency's dismissal of the issues relating

to the complainant's May 25, 1997 removal and her April 12, 1999 �failure

to reinstate� claim. The complainant has made no persuasive arguments

or submitted evidence that warrant an extension to the time limit for

initiating EEO contact, particularly given that she was released to

return to full time work on March 16, 1999, and did not contact an EEO

Counselor until September 22, 1999.

However, the Commission finds that the agency did not address the

complainant's claim of discrimination in its failure to provide her with a

certification so that she could be given priority consideration for jobs

at other federal agencies. This failure is tantamount to a dismissal.

The record discloses that the complainant requested a certification

from the agency on August 27, 1999. The complainant states that having

not received a response to her request for certification by September

22, 1999, she began to suspect that the agency was intentionally

discriminating against her because of its perceived notion that she was

disabled.

Accordingly, the agency's dismissal of the complainant's removal and

�failure to reinstate� claims are AFFIRMED. However, we REVERSE the

agency's dismissal of the complainant's claim that the agency failed

to provide a certification and REMAND it back to the agency for further

processing.

ORDER (E0400)

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 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 (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 (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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:

August 2, 2000

________________________________

Date Carlton M. Hadden, 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

1 On 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.