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.