Shirley A. Muniz, Complainant,v.Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission,<1> Agency.

Equal Employment Opportunity CommissionOct 20, 2000
01996383 (E.E.O.C. Oct. 20, 2000)

01996383

10-20-2000

Shirley A. Muniz, Complainant, v. Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.


Shirley A. Muniz v. Equal Employment Opportunity Commission

01996383

October 20, 2000

.

Shirley A. Muniz,

Complainant,

v.

Ida L. Castro,

Chairwoman,

Equal Employment Opportunity Commission,<1>

Agency.

Appeal No. 01996383

Agency No. 0-9900054-DE

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated July 15, 1999, dismissing her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<2> In her

complaint, complainant alleged that she was subjected to discrimination

on the basis of national origin (Hispanic) when:

Complainant was not promoted at the same rate of progression as two

investigators not of her protected class.

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor

contact. Specifically, the agency stated that the personnel actions

alleged to have been discriminatory occurred in 1995 and 1996. The agency

claimed that complainant did not contact an EEO Counselor until April

12, 1999, beyond the applicable forty-five (45) day limitation period

for timely counselor contact. In addition, the agency noted that the

personnel actions of the persons to whom complainant compared herself

occurred in 1998 and 1999.

On appeal, complainant argued that she first learned of the alleged

discriminatory action on March 18, 1999. Complainant stated that she

was hired in 1995 into an investigator GS-07 position and had to wait

twelve months to progress to a GS-11 position, the grade she held prior to

being hired at the agency. Complainant states that at a March 18, 1999

staff meeting, she learned that two new investigators (who previously

held positions at the GS-12 level) were hired at the GS-09 level in

September 1998 and were promoted to the GS-12 level within six months.

Complainant notes that only one other investigator was hired between March

1995 and September 1998, after she was hired but states that he was with

the agency's Denver District Office for only a short period of time and

thus, she states, it is not known whether he would have been promoted

on a different time line. Thus, complainant argues that her counselor

contact was timely since she contacted an EEO Counselor within forty-five

(45) days of March 18, 1999, the date she first suspected discrimination.

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 Regulation 29 C.F.R. � 1614.105(a)(2) provides that the agency or

the Commission shall extend the 45 day time limit when the individual

shows that she was not notified of the time limit 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 limit, or for

other reasons considered sufficient by the agency or the Commission.

In the present case, we find that the agency improperly dismissed

complainant's complaint on the grounds of untimely EEO Counselor contact.

The Commission finds that the agency has not shown that complainant

suspected or reasonably should have suspected discrimination earlier than

March 18, 1999, when she first discovered that coworkers of a different

national origin were promoted at a faster rate than complainant was

promoted. We find complainant's April 12, 1999 counselor contact to

be timely.

Accordingly, we REVERSE the agency's decision and REMAND the complaint

for further processing in accordance with the Order below.

ORDER (E0800)

The agency is ORDERED to process the remanded claims in accordance with

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 (K0800)

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 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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0800)

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 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 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 (R0400)

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

October 20, 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

______________________________

1In the instant matter, the Equal Employment Opportunity Commission

is both the respondent agency and the adjudicatory authority. The

Commission's adjudicatory function is separate and independent from

those offices charged with the in-house processing and resolution of

discrimination complaints. For purposes of this decision, the term

�Commission� or �EEOC� is used when referring to the adjudicatory

authority and the term �agency� is used when referring to the

respondent party in this action. The Chairwoman has recused herself

from participation in this decision.

2On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.