01993845
07-28-2000
Maurine M. White, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior (Bureau of Reclamation), Agency.
Maurine M. White v. DOI (BOR)
01993845
July 28, 2000
.
Maurine M. White,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.
Appeal No. 01993845
Agency No. WBR-98-035
DECISION
On April 10, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated March 12, 1999, dismissing an
allegation for untimely counselor contact.<1> The Commission accepts
the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405).
Complainant contacted the EEO office regarding claims of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act in 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. Informal efforts to resolve complainant's
concerns were unsuccessful. Accordingly, complainant filed a formal
complaint, dated August 2, 1994, on the bases of age (58 at relevant time)
and reprisal for prior EEO activity.
The agency issued a FAD dismissing complainant's complaint for untimely
counselor contact pursuant to 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)). In a decision dated May 27, 1998, this Commission
remanded allegation #1 of that complaint for further processing.
The agency framed the remanded allegation as follows:
The position appellant accepted was misrepresented as a GS-11/12 but
was changed to a GS-9, after appellant accepted it.
In the remand order, the Commission noted that the record was �unclear
and ambiguous� concerning when complainant initially contacted an EEO
counselor. The Commission directed the agency to conduct an inquiry
�sufficient� to enable it to make a �reasoned determination� as to the
timeliness of the counselor contact. See White v. Department of the
Interior, EEOC Appeal No. 01975953 (May 27, 1998).
On March 12, 1999, the agency issued a FAD dismissing the remanded
allegation for untimely counselor contact. The agency did not conduct
further inquiry as to the timeliness of counselor contact regarding
the remanded allegation, but instead relied upon the existing Report of
Investigation (ROI) to determine that contact was untimely. Specifically,
the agency stated that a review of the original record revealed that
complainant learned of the grade reduction on or before September 30,
1993, and that she acknowledged in a letter that her initial contact
with an EEO counselor was on December 1 or 2, 1993, which is beyond the
forty-five (45) day limitation period.
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 facts supporting a charge of discrimination have become
apparent. See Whalen v. Department of Justice, EEOC Request No. 05960147
(September 18, 1997).
In the instant case, complainant does not dispute that she was aware
of the forty-five (45) day time limit. On appeal, however, complainant
argues, through her attorney, that the agency erred by using September
30, 1993 as the date triggering the forty-five (45) day time limit.
Complainant argues that she did not have a reasonable suspicion of the
allegedly discriminatory grade reduction until her first day on the job,
October 21, 1993, and that her contact with an EEO counselor, on December
1 or 2, 1993, was therefore timely.
Complainant acknowledges that she received a telephone call from a
personnel officer (PO) at the agency, in September 1993, informing her
that the position she had already accepted was being changed from GS-11 to
GS-9 and from permanent to temporary. In a letter to an EEO investigator
(EI) dated September 6, 1996, complainant stated that she asked PO whether
the other new hires had their positions changed as well. PO replied that
her position was the only one being changed. When complainant asked
why she was being treated differently, PO simply explained that the
selecting supervisor (SS) had �changed her mind� for some unknown reason.
In her letter to EI, complainant went on to explain that she subsequently
learned that the reason for the disparate treatment was discriminatory.
On an unidentified date, complainant stated that SS told her that she
had only hired complainant because of her previous EEO complaint, and
that she had changed complainant's position to temporary because she
wanted to hire her in way that she could ��get rid of [complainant]
when she wanted to without much effort.'�
This Commission has held that mere knowledge of a personnel action may
not be sufficient to trigger the forty-five (45) day time limit when the
employee lacks knowledge of the particulars of the action. For instance,
in Cottman v. Defense Investigative Service, EEOC Request No. 05880312
(May 27, 1988), the Commission found that mere inquiry by a complainant
not selected for a position regarding the successful candidate(s) does
not trigger the running of the time period because such an inquiry
�without more, does not indicate [complainant] reasonably suspected
discrimination.� Instead, the Commission held that the time limit was
triggered when the complainant was informed of the race and age of the
selectee.
In the instant case, complainant's mere inquiry regarding the status of
other hires during her telephone conversation with PO in September 1993
does not indicate that she reasonably suspected discrimination at that
time. It was not until later, during her afore-mentioned conversation
with SS, that complainant was �alerted...to act to protect [her] rights�
and �should have perceived that discrimination was occurring.� See
Connor v. Department of Army, EEOC Appeal No. 01830913 (April 30, 1984),
citing Elliott v. Sperry Rand Corp., 79 F.R.D. 580, 21 F.E.P. Cases 677
(D. Minn. 1978).
While complainant's letter to EI does not specify the date of
this encounter, the record reflects that SS and complainant did not
interface until after the latter's first day on the job, October 21,
1993. The Commission finds persuasive complainant's assertion that it
was after she began her job on October 21, 1993 that she reasonably
suspected discrimination. While she wondered and inquired as to the
reason of the disparate treatment in September 1993, she did not know
the particulars surrounding the action until her conversation with SS.
Complainant initiated contact with the agency's EEO office on December 1
or 2, 1993, at most forty-two (42) days after October 21, 1993, and thus
within the forty-five (45) day time requirement. The agency's decision
to dismiss the allegation for untimely counselor contact was therefore
improper.
As a final matter, the Commission notes that the agency relied upon
the existing Report of Investigation (ROI) instead of conducting
further inquiry as directed by our previous order concerning the
remanded allegation. See White v. Department of the Interior, EEOC
Appeal No. 01975953 (May 27, 1998). We admonish the agency for its
failure to fully comply with our order and remind the agency of its
duty to develop an impartial and appropriate factual record. See 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.108(b)).
Accordingly, the agency's decision to dismiss the remanded allegation
was improper, and is hereby REVERSED and REMANDED for further processing
in accordance with the ORDER below and applicable regulations.
ORDER (E0400)
The agency is ORDERED to process the remanded claim 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 (S0400)
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. 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 (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, Acting Director
Office of Federal Operations
July 28, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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.