Mary F. Headen, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 1, 2000
01A03832 (E.E.O.C. Sep. 1, 2000)

01A03832

09-01-2000

Mary F. Headen, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Mary F. Headen v. U.S. Department of the Army

01A03832

September 1, 2000

.

Mary F. Headen,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A03832

Agency No. 99-12J0180

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision dated April 5, 2000, dismissing her complaint of unlawful

employment discrimination brought under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The Commission

accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).

Complainant established initial EEO contact on November 1, 1999, by

letter dated October 24, 1999. Therein, she set forth a chronology

of adverse events transpiring from June 7, 1999, to October 21, 1999.

Complainant contended that her supervisor abruptly removed her from her

managerial position on June 7, 1999, without an assignment to another

position or detail, and with no official documentation of any kind

identifying what type of personnel action was involved. Complainant

stated that after her �removal� she was forced to use annual leave to

find another suitable position at the agency.<2> Complainant described

on-going attempts to redress the June 1999 �removal� action while also

trying to secure another position. Complainant stated that she brought

the matter to the attention of the office of Inspector General on June

27, 1999. She also indicated that it was not until September 22, 1999,

when she learned that a white female worker was being promoted and

detailed to her former position, that she realized that her �removal�

was motivated by racial animus.

When counseling was unsuccessful, complainant filed a formal complaint

claiming racial discrimination in her June 1999 �removal,� and harassment

because of the manner in which the �removal� was effected.

The agency dismissed the complaint on the grounds of untimely EEO

Counselor contact, finding that complainant failed to contact an

EEO Counselor within forty-five days of the date of her �removal� in

June 1999. The agency also found that complainant acknowledged that on

September 7, 1999, a personnel official advised her to contact an EEO

Counselor, but yet she waited fifty-four days to do so.

Neither party submits a statement on appeal.

Volume 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))

requires that complaints of discrimination should be brought to the

attention of the EEO Counselor within forty-five days of the date of

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

action, with 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, and 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 record reflects that complainant realized that she was being treated

in an adverse manner by agency officials, during her June 1999 �removal,�

and in the agency's subsequent failure to redress the problem or place her

in a �suitable� position. However, the record supports a determination

that she did not reasonably suspect that she was the victim of unlawful

employment discrimination until a named white co-worker, purportedly

far less qualified, was promoted and detailed to her former position. As

complainant stated in her October 24, 1999 letter to the EEO office, it

was only when she learned of this action on September 22, 1999, that she

realized that certain past events were attributable to racial animus.

Moreover, we note that complainant also stated in the October 24,

1999 letter that she was advised by the personnel office on September

7, 1999, that possible options for recourse included EEO processing,

the grievance procedure, and the Inspector General's office. However,

there is nothing in the record reflecting that complainant communicated

to agency officials as early as September 7, 1999, that the agency's

actions were discriminatorily motivated.

In summary, we find that complainant first suspected that her �removal�

was discriminatory on September 22, 1999, and that her November 1, 1999,

EEO contact was timely. Therefore, we REVERSE the agency's dismissal,

and REMAND this case to the agency for further processing consistent

with the Order below.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 1, 2000

__________________

Date

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.

2Complainant initially was given 30 days of administrative leave for

this purpose, but then had to use annual leave. She eventually returned

to work, and was assigned to a detail consisting of unofficial duties.