Maureen Geoghegan, Appellant,v.Carol M. Browner, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
01991049 (E.E.O.C. Oct. 28, 1999)

01991049

10-28-1999

Maureen Geoghegan, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.


Maureen Geoghegan v. Environmental Protection Agency

01991049

October 28, 1999

Maureen Geoghegan, )

Appellant, )

)

v. ) Appeal No. 01991049

) Agency No. 98-0074-HQ

Carol M. Browner, )

Administrator, )

Environmental Protection )

Agency, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination,

in violation of the Age Discrimination in Employment Act of 1967, as

amended, 29 U.S.C. �621 et seq. The final agency decision was received

by appellant on October 22, 1998. The appeal was postmarked November

20, 1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed three of

six allegations raised in appellant's complaint.

BACKGROUND

Appellant contacted an EEO counselor on January 21, 1998, regarding

allegations of discrimination. Specifically, appellant alleged that

she was discriminated against when:

(1) On or about October 30, 1997, she was informed by her supervisor

that she would not be promoted to a GS-9 position if she successfully

completed the probationary period;

(2) On October 30, 1997, she received a performance rating of "Minimally

Satisfactory;"

(3) She did not receive pay for overtime. Appellant also alleges that

she often worked late without compensation;

(4) She was subjected to an environment which endorsed and ratified

age bias. Appellant alleges that an example of such bias occurred in

August 1997 when her supervisor acknowledged that it must be appellant's

age that caused an EPA employee to assume, at a briefing presentation,

that appellant was the Project Manager;

(5) She was assigned work more appropriately given to a "Senior Analyst"

rather than to an "entry-level GS-7" and

(6) On February 20, 1998 she was terminated from her position during

her probationary period.

Informal efforts to resolve appellant's concerns were unsuccessful.

On May 13, 1998, appellant filed a formal complaint alleging that she

was the victim of unlawful employment discrimination on the basis of age

(unspecified).

On October 19, 1998<1>, the agency issued a final decision (FAD)

accepting for investigation allegations (3), (5), and (6) of appellant's

complaint but dismissing allegations (1), (2), and (4) for failure to

timely initiate contact with an EEO Counselor. Specifically, the agency

determined that appellant's January 21, 1998 counselor contact concerning

allegations (1), (2), and (4) which she alleges occurred in August and

October of 1997, was beyond the applicable time limitation established by

EEOC Regulations. On appeal, moreover, the agency states that allegations

(1), (2), and (4) are not part of a continuing violation.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO 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 Ball v. USPS, EEOC Request No. 05880247 (July

6, 1988). 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 has held also that the time requirements for initiating EEO

counseling could be waived as to certain allegations within a complaint

when, as here, the complainant alleged a continuing violation; that is,

a series of related discriminatory acts, one of which fell within the

time period for contacting an EEO Counselor. See McGivern v. U.S. Postal

Service, EEOC Request No. 05901150 (December 28, 1990).

Appellant failed to seek counseling within 45 days of the alleged

discriminatory events as described in allegations (1), (2) and (4).

On appeal, appellant does not indicate that she was unaware of the time

limitation for counselor contact. Instead, she argues that allegations

(1), (2) and (4) are part of a continuing violation which the agency

failed to investigate. We disagree with regard to allegations (1) and

(2). Allegation (1) of appellant s complaint concerns appellant's

non-promotion to the a GS-9 position and allegation (2) involves

appellant's performance rating. It is well settled that the denial

of a promotion and the issuance of an annual performance appraisal

are incidents that have the degree of permanence which should trigger

an employee's duty to assert his rights. See Anvari v. Department of

Health and Human Services, EEOC Request No. 05930157 (June 17, 1993);

Jackson v. U.S. Air Force, EEOC Request No. 05950780 (June 27, 1997).

We find also that there is no nexus between untimely allegations (1) and

(2), and the timely allegations which were accepted for investigation by

the agency. See Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).

The Commission determines that allegations (1) and (2) do not establish

a continuing violation. Therefore, the agency's decision dismissing

allegations (1) and (2) as untimely is AFFIRMED.

In allegation (4), appellant alleges that she was subjected to a work

environment which endorsed and ratified age bias. As an example of such

bias, appellant alleged that in August 1997, her supervisor indicated that

"it must be [appellant's] age" which caused another employee to assume

during a briefing presentation that appellant was the Project Manager.

The agency dismissed allegation (4) pursuant to 29 C.F.R. �1614.107(b),

finding that appellant's EEO contact on January 21, 1998 was untimely with

regard to an event which occurred in August 1997 was untimely. However, a

fair reading of appellant's complaint and her appeal statements reflects

that allegation (4) addresses the matter of the agency purportedly

creating and maintaining an atmosphere of age bias, one example of which

occurred in August 1997. Allegation (5), which was accepted by the agency

for investigation, alleges that the appellant was given assignments more

appropriate for a "Senior Analyst," than for an "entry-level GS-7." We

find that appellant's allegation that she was subjected to an atmosphere

of age bias and discrimination caused by the agency, allegation (4), is

sufficiently related to the accepted allegation (5) which indicated that

she was routinely given assignments more fitting for a Senior Analyst.

Moreover, the Commission finds that the incident of August 1997,

as described in allegation (4), is simply an example of the alleged

age bias to which appellant claims she has been subjected over time.

We find a nexus between the untimely allegation (4) and timely allegation

(5) to support appellant's claim of discrimination pursuant to the

theory of continuing violation. Scott v. Claytor, 469 F. Supp. 22, 26

(D.D.C. 1978). Therefore, we determine that the agency's dismissal

of allegation (4) based on untimely counselor contact was improper.

Allegation (4) is REMANDED to the agency for processing.

CONCLUSION

Accordingly, the agency's decision dismissing allegations (1) and (2)

as untimely, is AFFIRMED. The agency's decision dismissing allegation

(4) is REVERSED and REMANDED to the agency for processing in accordance

with this decision and the Order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegation in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegation within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant 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 (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 (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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. If you file

a request to reconsider and also file a civil action, 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:

10/28/1999

_________________________________

DATE Carlton M. Hadden, Acting Director

1The record indicates that the agency had previously issued a FAD dated

September 21, 1998, dismissing appellant's complaint in its entirety because

it had not been timely filed pursuant to EEOC Regulation 29 C.F.R.

�1614.106(b). Appellant's attorney submitted evidence that appellant's

complaint had in fact been timely filed in accordance with EEOC Regulations.

In that regard, the agency amended its September 21, 1998 decision and

issued the October 19, 1998 FAD which is the subject of this appeal.