Sharon M. Ellis, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01986316 (E.E.O.C. Feb. 10, 2000)

01986316

02-10-2000

Sharon M. Ellis, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Sharon M. Ellis, )

Complainant, )

)

v. ) Appeal No. 01986316

) Agency No. 98-00024-005

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

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

the agency concerning 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> The final agency decision

was issued on July 13, 1998. The appeal was postmarked August 18, 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.<2>

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed the complaint

on the grounds of untimely EEO contact.

BACKGROUND

Complainant initiated contact with an EEO Counselor on February 6, 1998.

On April 28, 1998, complainant filed a formal EEO complaint wherein she

alleged that she had been discriminated against on the bases of her race

(African-American), physical disability (back injury) and in reprisal

for her previous EEO activity when on December 11, 1997, her request to

be assigned to work as Supervisor of the Shipbuilding, Conversion and

Repair (SUPSHIP) Jacksonville Review was denied by her Supervisor.

In its final decision, the agency dismissed the complaint on the grounds

of untimely EEO contact. The agency determined that complainant's contact

of an EEO Counselor on February 6, 1998, was more than 45 days after

the alleged discrimination occurred on December 11, 1997. The agency

reasoned that since complainant previously filed an EEO complaint against

her supervisor, she had or should have had a reasonable suspicion of

discrimination on December 11, 1997.

On appeal, complainant contends that her EEO contact was timely.

Complainant argues that she did not suspect discrimination until she

learned on December 31, 1997, that a coworker who had never performed

a review had been assigned the SUPSHIP project. Complainant explained

that previously she thought that a more experienced colleague had been

assigned this project.

In response, the agency asserts that complainant should have reasonably

suspected discrimination on December 11, 1997, when her supervisor told

her not to work on the SUPSHIP project. The agency maintains that

in light of complainant's previous complaint against her supervisor,

complainant should have reasonably suspected discrimination on the

basis of reprisal on December 11, 1997, when she received a different

assignment than the assignment she had requested. The agency argues

that complainant's discovery of the identity of the individual who was

performing the SUPSHIP assignment, and her subsequent discussion with

that individual, does not establish December 31, 1997, as the date

she reasonably suspected discrimination. Further, the agency asserts

that it is illogical for complainant to claim that she did not suspect

racial discrimination until December 31, 1997, because on that date she

learned that an African-American coworker was performing the work she

had requested. The agency argues that complainant does not explain why

she failed to suspect racial discrimination on December 11, 1997, when she

thought one of her Caucasian coworkers received the SUPSHIP assignment.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

cited as 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.

The record reveals that complainant's request to be assigned the SUPSHIP

project was denied on December 11 1997. Complainant initiated contact

with an EEO Counselor on February 6, 1998, more than 45 days after

her request was denied. On appeal, complainant claims that she was

unaware of the alleged discrimination until December 31, 1997, when

she learned that a coworker who had not previously performed reviews

was in charge of the project. Complainant stated that before she

obtained this information, she did not suspect discrimination because she

believed that a more experienced colleague had received the assignment.

The agency failed to present any evidence to show that complainant

suspected discrimination when she was denied the assignment, rather

than on December 31, 1997, when she learned that a less experienced

colleague received the SUPSHIP assignment. The agency has the burden

of providing evidence and/or proof to support its final decisions.

Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,

1993); Gens v. Department of Defense, EEOC Request No. 05910837 (January

31, 1992). Consequently, we find that complainant's contact of an EEO

Counselor on February 6, 1998, was within the 45-day limitation period.

Accordingly, the agency's dismissal of the complaint on the grounds of

untimely EEO contact was improper and is REVERSED. This complaint is

hereby REMANDED for further processing pursuant to the ORDER below.

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 10, 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,

and the agency on:

DATE 1 On 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.

2 The record does not establish when complainant received the final

agency decision. Absent evidence to the contrary, we find that the

instant appeal was timely filed.