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.