01984739
06-24-1999
Lynda A. Quigley, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Lynda A. Quigley v. Department of the Air Force
01984739
June 24, 1999
Lynda A. Quigley, )
Appellant, )
) Appeal No. 01984739
v. ) Agency No. KH0D98021
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
On May 26, 1998, appellant filed a timely appeal of an April 6, 1998 final
agency decision, received by her on May 6, 1998. The final decision
dismissed allegations (a) to (p) of appellant's complaint for failure
to contact an EEO Counselor in a timely manner.
Generally, an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory. See
29 C.F.R. �1614.105(a)(1). EEOC Regulation 29 C.F.R. �1614.105(a)(2)
provides that the agency or the Commission shall extend the 45-day time
limit when the individual shows that he or she was not notified of the
time limits and was not otherwise aware of them, that he or she did
not know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence he
or she was prevented by circumstances beyond his or her control from
contacting the counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission. In addition,
EEOC Regulation 29 C.F.R. �1614.604(c) provides that the time limits
in Part 1614 are subject to waiver, estoppel and equitable tolling.
For example, the time limit may be extended, if the allegation involves
a continuing violation. McGivern v. U.S. Postal Service, EEOC Request
No. 05901150 (December 28, 1990).
Upon review, the Commission finds that the agency's final decision was
improper. As an initial matter, the Commission notes that the agency
misconstrued appellant's complaint in part. In her October 29, 1997
complaint, appellant alleged that she was subjected to sexual harassment
and ongoing harassment from June 10, 1996 and therein she described
several incidents of alleged harassment. In defining the allegations
of the complaint in a vacuum, the agency failed to consider whether the
allegations of appellant's complaint are a part of a broader claim of
continuing harassment. The Commission has consistently held that an agency
should not ignore the "pattern aspect" of a complainant's allegations and
define the issues in a piecemeal manner where an analogous theme unites
the matter complained of. See Meaney v. Department of the Treasury, EEOC
Request No. 05940169 (November 3, 1994). Also, by defining appellant's
complaint in such a manner, the agency also failed to consider the
continuing violation theory.
In her complaint, appellant alleged that the harassment was ongoing.
Nonetheless, the agency failed to consider in its final decision whether
the dismissed allegations constituted a continuing violation or whether,
considered in conjunction with accepted allegations (q) to (y), the
dismissed allegations would be timely under the continuing violation
theory. 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. See Guy v. Department of Energy,
EEOC Request No. 05930703 (December 16, 1993). 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. See Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992). Accordingly,
the agency must address the issue of continuing violation on remand.
In addition, on appeal appellant asserts, among other things, that as
a new federal employee she was unaware of the EEO process and what
actions she could have taken concerning the alleged discriminatory
actions. The agency has not provided any evidence that would establish
whether appellant had actual or constructive notice of the EEO process.
The Commission has consistently held that the agency bears the burden
of obtaining sufficient information to support a reasoned determination
as to timeliness. Guy supra. Therefore, on remand, the agency shall
determine whether appellant had actual or constructive notice of the
EEO process during the relevant time periods.
Consistent with our discussion herein, the agency's dismissal of
allegations (a) to (p) is hereby REVERSED and the dismissed allegations
are REMANDED to the agency for further processing.
ORDER
The agency is ORDERED to take the following actions:
(1) The agency shall redefine appellant's complaint as one alleging
harassment;
(2) the agency shall conduct a supplemental investigation into the
timeliness of EEO contact which shall include, but is not limited to,
when appellant may have had a reasonable suspicion of discrimination;
whether appellant had actual or constructive notice of her EEO rights; and
whether appellant established a continuing violation. In investigating
whether appellant had actual or constructive knowledge of the time limit
for contacting an EEO Counselor, the agency shall supplement the record
with copies of the EEO posters (or affidavits describing the posters if
the posters are unavailable)and any other evidence showing that appellant
was informed, or should have known, of the time limits for contacting
an EEO Counselor.
After completing the investigation, the agency shall decide whether
to process or dismiss the allegations. 29 C.F.R. �1614.106 et seq.
The supplemental investigation and issuance of the notice of processing
and/or final decision must be completed within thirty (30) calendar days
of the date this decision becomes final.
A copy of the final decision and/or notice of processing must be submitted
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 (R0993)
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. 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:
June 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations