01a35154
06-03-2004
Marian M. Battle v. Department of the Army
01A35154
6/3/2004
.
Marian M. Battle,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A35154
Agency No. ARCEMEM03MAR0059
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 1, 2003, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In her formal complaint dated April 2, 2003, complainant alleged that
she was subjected to discrimination in reprisal for prior EEO activity.
In its final decision dated August 1, 2003, the agency determined that
complainant's complaint was comprised of the following claim:
[Complainant] initially filed [an] EEO complaint on [January 21, 2003],
alleging that [her] last performance appraisal was adversely affected
because of a previous EEO complaint filed with the agency. [Complainant]
also stated in [her] complaint that this claim was to be investigated, but
[complainant] did not receive counseling on this subject. The previous
complaint was amended by the investigator criteria and was part of
the previous complaint for which [complainant] received counseling.
However, [complainant] withdrew [her] statement on [February 5, 2003],
stating that it was not [her] performance appraisal, but the fact that
[complainant] did not receive a monetary performance award, after
receiving an overall rating of one (1) excellent on [her] performance
appraisal.
The agency dismissed complainant's complaint for untimely EEO Counselor
contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the agency
stated that �[t]he date of the alleged event was [December 4, 2002],
but [complainant] did not contact an EEO Counselor until [January 21,
2003], making the 45th calendar date [January 18, 2003].�
On appeal, complainant, through her representative, states that her
complaint was improperly dismissed. Complainant asserts that the
instant complaint �was included in [an] investigation but during the
investigation, the Investigator stated that [her] complaint was worded
wrong...and that [she] had to take the complaint back through the EEO
process.� Furthermore, complainant asserts that �if [the pre-complaint]
had been counseled in the first place, the issue of wording would
have been cleared up.� In addition, complainant's representative, on
appeal, states that she is being subjected to harassment based upon her
representing various agency employees in EEO matters.
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.
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 finds that the agency improperly dismissed complainant's
complaint. The record contains a pre-complaint form signed by complainant
on January 21, 2003. Therein, complainant states, �I believe that my
last performance appraisal was adversely affected because of my filing
an EEO complaint with the [a]gency.� Complainant's pre-complaint
form also contains a handwritten notation signed by complainant and dated
February 5, 2003. Therein, complainant stated that she is withdrawing the
statement in her pre-complaint. The record also contains a memorandum
from complainant dated February 6, 2003. Therein, complainant states
that she is amending her informal complaint dated January 21, 2003.
Specifically, complainant states, �I want to re-enter an amendment
stating: [t]hat I want to file on the non-receipt of a Performance Award
based on the rating I received.� Furthermore, in her formal complaint,
complainant stated that the investigator told her that her complaint
was worded incorrectly and that it should be amended.
The record also contains a copy of an EEO Counselor's Report dated April
3, 2003. Therein, the EEO Counselor provides, �[complainant] originally
filed a [pre-complaint] on January 21, 2003, alleging that her performance
appraisal was adversely affected because she had filed a previous EEO
complaint with the agency. However, she withdrew her statement on
[February 5, 2003], stating that it was not her performance appraisal,
but the fact that she did not receive a monetary performance award.�
Based on these circumstances, the Commission finds that complainant
initiated EEO Counselor contact on January 21, 2003. The January 21,
2003 pre-complaint form lists the alleged incident date as December 4,
2002; however, the EEO Counselor's Report and the formal complaint
list the alleged incident date as December 18, 2002. The Commission finds
that because complainant initiated EEO Counselor contact on January 21,
2003, both these incident dates (December 4, 2002, and December 18, 2002)
are timely. EEOC Regulation 29 C.F.R. � 1614.604(d) provides that the
first day counted shall be the day after the event from which the time
period begins to run and the last day of the period shall be included,
unless it falls on a Saturday, Sunday, or Federal holiday in which the
period shall be extended to include the next business day. Because the
45th day after the alleged incident date of December 4, 2002, was a
Saturday and because Monday, January 20, 2003, was a Federal holiday,
we find that complaint's initial EEO Counselor contact on Tuesday,
January 21, 2003, was timely.
Accordingly, the agency's decision dismissing complainant's complaint
is REVERSED. This complaint is REMANDED for further processing in
accordance with the ORDER below and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
6/3/2004
Date