01982539
09-15-1999
Susan M. Godsey, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency
Susan M. Godsey v. Department of the Treasury
01982539
September 15, 1999
Susan M. Godsey, )
Appellant, )
) Appeal No. 01982539
v. ) Agency No. 97-2314
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision 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 the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. �621 et seq. The final agency decision was
dated January 22, 1998. The appeal was postmarked on February 13, 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.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed several
allegations of appellant's complaint for untimely contact with an EEO
Counselor, and because the issues were not raised with the EEO Counselor
during counseling.
BACKGROUND
Appellant filed a formal complaint on September 2, 1997, alleging
discrimination on the bases of race (white), sex (female), age (59),
and reprisal (prior EEO activity). Her complaint had the following 13
allegations:
1) since her promotion to supervisor in May 1991, she has never been
provided the basic supervisory training at Glynco, Georgia;
2) in June 1991 and in 1996, she was not given monetary awards and
recognition for outstanding accomplishments;
3) in 1995, she did not receive her job standards and she was not given
an opportunity for career guidance;
4) in November and December 1996, and in November 1997, she did not
receive special training;
5) in April 1996, the latter part of 1996, and in November 1997, she
was not allowed to be placed on temporary duty assignments;
6) she has not been allowed to be placed on a special detail in the Port
Office, CMC office or Headquarter's office;
7) she has not been given the opportunity to volunteer or serve on
certain ongoing management committees and workshops;
8) she was never given the opportunity to serve on the Customs Enforcement
Team (CET);
9) in April 1996, she was reassigned to Passenger Processing;
10) in 1996, she was not awarded for performance as a manager in the
Mail Facility;
11) she did not receive her 1995 appraisal timely or properly;
12) on or after May 5, 1997, she was denied a reassignment to Airport
Cargo; and
13) on or after May 5, 1997, she was assigned the collateral
responsibility of supervising the cashier's section in Passenger
Processing.
In its final agency decision, the agency accepted for investigation
allegations 1, 7, 8, 12, and 13. It dismissed allegations 2, 3, 4, 5,
6, 9, 10 and 11 because of untimely EEO Counselor contact. Appellant
contacted an EEO Counselor on June 19, 1997, about her complaint of
discrimination. The agency found that those allegations did not state a
continuing violation, and that appellant had reasonable suspicion that
she was being discriminated against starting as early as 1990, after
her husband prevailed on his EEO complaints against the same agency.
Allegations 4 and 5 were also dismissed on the grounds that the November
1997 incident occurred after EEO counseling had been completed and
therefore had not been brought to the attention of the EEO Counselor.
This appeal followed.
On appeal, appellant argued that she had alleged a continuing violation,
and because at least one of the allegations was timely, all of the
allegations that are part of the continuing violation are timely as well.
She stated that all the issues of her complaint show the continuous nature
of the discrimination and all should be accepted for investigation.
ANALYSIS AND FINDINGS
The Commission has previously held that when confronted with claims
involving multiple allegations, an agency should not ignore the
"pattern aspect" of a complainant's allegations and define the issues
in a piecemeal manner where an underlying theme unites the matters
complained of. Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994); Ferguson v. Department of Justice,
EEOC Request No. 05970792 (March 30, 1999); Drake v. Department of the
Air Force, EEOC Request No. 05970689 (March 29, 1999).
We find that appellant has set forth four claims of discrimination
comprised of the following incidents:
A) Training: Appellant claims she did not receive the same training
opportunities as other employees, as set forth in allegations 1 and 4;
B) Assignments: She claims she was denied job assignments and duty
opportunities that were afforded to other employees. Allegations 5, 6,
7, 8, 9, 12 and 13 illustrate appellant's contention;
C) Awards: According to appellant, allegations 2 and 10 pertain to her
claim that she has been discriminatorily denied awards; and,
D) Appraisals: Appellant contends, through allegations 3 and 11, that she
was not given feedback and performance appraisals that were due to her.
We now turn to an examination of whether the claims made by appellant
were raised in a timely manner.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days of
the effective date of the personnel action. The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) for determining whether contact with an EEO Counselor is timely.
Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).
Under this standard, the regulatory limitations period "is not triggered
until complainant reasonably suspects discrimination, but before all
the facts that would support a charge of discrimination have become
apparent." Bracken v. U.S. Postal Service, EEOC Request No. 05900065
(March 29, 1990). Appellant stated in her appeal that following 1990,
when her husband prevailed in his EEO complaints against the agency,
she "became aware of discriminatory practices management began taking
against me." The record shows that appellant was an EEO Counselor for
the agency from 1982-1988. Having such a background in EEO, she should
have been well aware of the need to promptly report all discriminatory
practices, and the risk that not doing so could jeopardize her ability
to later assert claims based on those practices. Therefore, we find
that appellant had reasonable suspicion that she was being subjected to
illegal discrimination when each of these incidents arose.
Accordingly, claims C) and D) are dismissed as untimely raised.
None of the incidents which comprise these claims, allegations 2 and
10 with respect to claim C) and allegations 3 and 11, which are part
of claim D), occurred within 45 days of the date appellant contacted
an EEO Counselor. Appellant should have suspected discrimination when
they occurred. Thus, the Commission finds that appellant's claim
of discrimination with respect to awards and appraisals is properly
dismissed and the agency is not obligated to investigate any of the
allegations that comprise these claims.
As for claims A) and B), appellant has raised timely incidents within
each of these claims. The agency accepted allegation 1, which is a part
of claim A), thereby making her contention that she was discriminated
against with respect to the training she received, timely. However,
allegation 4 was not raised in a timely manner and is properly dismissed
for this reason.
With respect to claim B), the agency did accept for investigation
allegations 7, 8, 12 and 13, which along with allegations 5, 6 and 9,
comprise claim B). We agree with the agency that allegations 5 and 9 were
not raised in a timely manner with an EEO Counselor. These incidents
occurred in 1996 and appellant did not contact the Counselor until June
19, 1997. Allegation 6, on the other hand, appears to be ongoing in
nature and should be investigated as part of claim B).
Although we found allegation 4 in claim A) and allegations 5 and 9 in
claim B) properly dismissed as untimely, we note that this finding does
not relieve the agency of its responsibility to thoroughly investigate
all the circumstances that may be relevant to appellant's overall
claim of discrimination. See EEOC Management Directive (MD) 110 (5-4)
(October 22, 1992). This means that, to the extent they are probative
of appellant's overall discrimination claim, these allegations must be
investigated as background evidence. See Silva v. U.S. Postal Service,
EEOC Request No. 05960115 (June 20, 1996).
It is the decision of the Commission that the agency shall investigate
claims A) and B) as set forth in this decision. Any allegations not
found timely which are a part of claims A) and B) shall be investigated
as background evidence. Accordingly, the agency's decision with respect
to allegation 6 is REVERSED. Claims C) and D) are hereby dismissed
and the agency's final decision which dismissed those incidents which
comprised claims C) and D), namely allegations 2, 3, 10 and 11, is hereby
AFFIRMED. The agency shall comply with the Order set forth below.
ORDER (E1092)
The agency is ORDERED to process claims A) and B), as set forth in
this decision, in accordance with 29 C.F.R. �1614.108. The agency shall
acknowledge to the appellant that it has received the remanded allegations
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to appellant a copy of the investigative file and
also shall notify appellant 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 appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
September 15, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations