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.