Maurine M. White, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior (Bureau of Reclamation), Agency.

Equal Employment Opportunity CommissionJul 28, 2000
01993845 (E.E.O.C. Jul. 28, 2000)

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.