01990968
02-03-2000
Sandra J. Verrone, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Sandra J. Verrone, )
Complainant, )
)
v. ) Appeal No. 01990968
) Agency No. DOT-6-98-6126
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
On November 12, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated November 3, 1998,
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq.<1> In her complaint, complainant
alleged that she was subjected to discrimination on the bases of sex
(female), mental disability (depression), physical disability, and
retaliation when complainant was subjected to sexual harassment by
various Federal Highway Administration (FHWA) officials since 1968;
and was subjected to harassment, intimidation, and reprisal from her
supervisor and team leader since 1991.
In its FAD, the agency dismissed the complaint for untimely counselor
contact. Specifically, the agency found that complainant did not contact
a counselor until July 1, 1998, but that no incidents occurred within
forty-five days of the contact. The agency found that complainant
confirmed in a telephone interview that no instances of harassment
occurred between May 15, 1998 and July 1, 1998.
On appeal, complainant argues that she was unable to contact a counselor
because of a �dysfunctional state of mind,� caused by the harassment
from which she suffered. Complainant argues that she was under a
doctor's care and medicated for stress and anxiety during that time.
Complainant notes that she removed herself from the workplace in order
to avoid the stressful environment on June 1, 1998. Complainant also
contends that she attempted to inform the Division Administrator of the
harassment, and allow him an opportunity to take care of the problem.
Regarding the date complainant contacted a counselor, complainant
argues on appeal that she called an employee of human resources to get
the names of EEO Counselors on June 11, 1998. Complainant contends
that she received a list of counselors via mail on June 16, 1998,
and contacted a counselor who refused to take her case that same day.
Complainant claims that she then called another counselor on June 17,
1998, who told complainant that she would take the case, but then informed
complainant several days later that she could not counsel complainant
because of a conflict of interest. Complainant argues that she finally
reached a Counselor who agreed to discuss her claims on July 1, 1998.
The record includes the formal complaint, dated August 25, 1998.
Therein, complainant lists her most recent incident of discrimination
as April 1998, but later contends that she left the office on May 29,
1998, because she �could not take it� anymore.
The Counselor's Report, dated August 24, 1998, lists complainant's date
of initial EEO Counselor contact as July 1, 1998. The report provides
that the events precipitating the call occurred between April 10,
1998 and June 1, 1998. The record also includes an unsigned, undated
document, wherein an agency official of some kind details a telephone
conversation with complainant. Therein, complainant allegedly told
the official that no incident occurred between May 15, 1998 and July 1,
1998 -- within forty-five days of her initial contact. Complainant also
allegedly told this official that the events occurring between April 10,
1998 and June 1, 1998 led to complainant's filing of the complaint.
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 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. Otherwise, complainant that are not timely raised must
be dismissed. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter cited as 29 C.F.R. �1614.107(a)(2)).
Where, as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy, v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,
1993), the Commission stated that �the agency has the burden of providing
evidence and/or proof to support its final decisions.� See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
The dates on which the discrimination occurred are not entirely clear
from the record. The agency highlights the telephone conversation to
argue that no incidents occurred within forty-five days of her contact
(May 15 to July 1, 1998). However, several other statements from that
telephone call refer to incidents occurring within that time period.
Namely, complainant alleged that she filed the present complaint because
of incidents occurring from April 10 to June 1, 1998. Complainant also
asserts in her formal complaint that she left her position on May 29,
1998, because she could not endure the harassment any longer. Therefore,
the Commission finds that complainant contacted a counselor within 45
days of the alleged harassment.
The Commission has consistently held that a complainant satisfies
the criterion of Counselor contact by contacting an agency official
logically connected with the EEO process, even if that official is not
an EEO Counselor, and by exhibiting an intent to begin the EEO process.
See Cox v. Department of Housing and Urban Development, EEOC Request
No. 05980083 (July 30, 1998); Allen v. United States Postal Service,
EEOC Request No. 05950933 (July 9, 1996). Complainant contends without
contradiction on appeal that she contacted a counselor on June 16,
1998, who was unable to help her. Therefore, even if no incident of
harassment occurred after May 15, 1998, complainant's June 16, 1998 call
to a counselor sufficed for initial counselor contact, and rendered her
complaint timely.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the claim is REMANDED
for further processing.
ORDER (E1199)
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 an
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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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:
February 3, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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.