Patricia A. Griffin, Appellant,v.Joseph D. Duffey, Director, United States Information Agency, Agency.

Equal Employment Opportunity CommissionOct 25, 1999
01985392 (E.E.O.C. Oct. 25, 1999)

01985392

10-25-1999

Patricia A. Griffin, Appellant, v. Joseph D. Duffey, Director, United States Information Agency, Agency.


Patricia A. Griffin v. United States Information Agency

01985392

October 25, 1999

Patricia A. Griffin, )

Appellant, )

)

v. )

) Appeal No. 01985392

Joseph D. Duffey, ) Agency No. OCR-98-19

Director, )

United States Information )

Agency, )

Agency. )

______________________________)

DECISION

The appellant timely filed an appeal with this Commission from a

final agency decision (FAD), dated May 18, 1998, which the agency

issued pursuant to EEOC Regulation 29 C.F.R. �1614.107(a) and (b).

The Commission accepts the appellant's appeal in accordance with EEOC

Order No. 960, as amended.

The appellant alleged that she was discriminated against on the basis of

race (African-American) when: 1) in May 1997 she was treated unfairly

by the agency when she was unable to rescind her resignation; and, 2)

this treatment by the agency is a pattern of discrimination.

The agency dismissed allegation 1 for failure to state a claim,

and allegation 2 for untimely counselor contact. Specifically, with

respect to allegation 1, the FAD stated that the alleged harm appellant

suffered was the result of her voluntary resignation rather than the

agency's failure to allow her to rescind her resignation. With respect

to allegation 2, the agency determined that appellant "may have had a

reasonable suspicion of discrimination since 1990" and that her 1998

counselor contact was well beyond the time limitation.

The Commission finds that the agency improperly dismissed allegation 1

for failure to state a claim. EEOC Regulation 29 C.F.R. �1614.107(a)

provides, in relevant part, that an agency shall dismiss a complaint,

or portion thereof, that fails to state a claim. An agency shall accept

a complaint from any aggrieved employee or applicant for employment who

believes that he or she has been discriminated against by that agency

because of race, color, religion, sex, national origin, age or disabling

condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's federal

sector case precedent has long defined an "aggrieved employee" as one

who suffers a present harm or loss with respect to a term, condition, or

privilege of employment for which there is a remedy. Diaz v. Department

of the Air Force, EEOC Request No. 05931049 (April 21, 1994).

Regarding allegation (1), appellant alleges that she has suffered a harm

with respect to a term, condition, or privilege of her employment when

the agency did not permit appellant to rescind her resignation before

its effective date. Appellant alleges that this action was taken against

her because of her race. Therefore, appellant is an "aggrieved employee"

and she has stated a claim pursuant to 29 C.F.R. �1614.103(a).

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 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.

Regarding allegation (2), the FAD stated that appellant should have

suspected discrimination in 1990. On appeal, appellant argues that

the correct time period is 1993. Therefore, we find that appellant's

January 26, 1998 counselor contact was well beyond the forty-five (45)

day time limitation. The agency properly dismissed allegation 2 for

untimely counselor contact.<1>

CONCLUSION

Accordingly, the agency's dismissal of allegation 2 is AFFIRMED. The

agency's dismissal of allegation 1 is REVERSED and REMANDED for further

processing in accordance with this decision and applicable regulations.

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:

10/25/1999

___________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 The Commission notes that on appeal, appellant argues that her initial

EEO Counselor contact occurred in April 1997. Other than appellant's

bare assertion on this matter, however, there is nothing in the record

supporting this contention. Assuming, arguendo, that appellant's initial

EEO contact occurred in April 1997, it would nonetheless be untimely in

regard to the matter raised in allegation (2).