Susan M. Godsey, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency

Equal Employment Opportunity CommissionSep 15, 1999
01982539 (E.E.O.C. Sep. 15, 1999)

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