01A11003
04-03-2001
Barbara Woodruff, Complainant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
Barbara Woodruff v. Tennessee Valley Authority
01A11003
April 3, 2001
.
Barbara Woodruff,
Complainant,
v.
Craven H. Crowell, Jr.,
Chairman,
Tennessee Valley Authority,
Agency.
Appeal No. 01A11003
Agency No. 0712-96083
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated October 25, 2000, pertaining to 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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On July 12, 1996, complainant filed a formal complaint claiming
that she suffered discrimination based on race and sex when she was
terminated from an Electrician Trainee-4 position. On July 18, 1996,
the agency issued a decision dismissing the complaint for untimely
counselor contact. Specifically, the agency determined that complainant
suspected discrimination as early as November 1994 and March 1995, but
waited until June 1996, to contact the EEO office. Complainant appealed
the decision to the Commission. Finding the record to be inadequate,
the Commission vacated the agency's decision and remanded the matter for
a supplemental investigation. Woodruff v. Tennessee Valley Authority,
EEOC Appeal No. 01965835 (may 5, 1998).
In the prior decision, we noted that complainant had a reasonable
suspicion of discrimination at the time of her termination in November
1994, but it appeared that she was not aware of her EEO rights. While the
agency contended that the termination notice itself included EEO rights,
a copy of the letter was not included in the record. The record was
also lacking with respect to an alleged contact with a collateral
duty EEO Counselor at the time of the termination and EEO posters.
Accordingly, the agency was ordered to obtain such information and issue
a new decision. Id.
In compliance with the order, the agency issued a new final decision
on October 25, 2000, which is the subject of the instant appeal.
The complaint was again dismissed on the grounds that complainant failed
to timely contact an EEO Counselor.
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 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.
Based on a review of the record, including the information gathered
by the agency on remand, we find that the complaint was properly
dismissed for untimely Counselor contact. We find that complainant
reasonably suspected discrimination more than forty-five days before
her June 24, 1996 Counselor contact. The record contains a copy of a
September 27, 1994 letter, notifying complainant of her termination.
The letter also informed complainant that if she believed the action
was based on discrimination she could file a complaint with the agency's
Equal Opportunity Compliance Staff, after contacting a Counselor within
forty-five days of the alleged discriminatory personnel action. Instead
of contacting the EEO office, complainant appealed the termination to the
Screening Review Board (SRB). In November 1994, complainant received a
letter from the Human Resources Officer stating that the SRB decided to
uphold the termination which was effective November 4, 1994. The record
further establishes that complainant filed a grievance on the matter
and a premature appeal with the Commission. In addition, to the EEO
information provided in the termination letter, complainant was advised
to seek counseling if she wished to pursue the matter through the EEO
process in a March 20, 1995 letter from the Memphis District Office and
in the December 4, 1995 closing of her premature appeal. The record also
reflects that during the relevant time period EEO posters, describing the
time limit, were on display at the complainant's workplace. Subsequently,
we find that complainant had actual or constructive knowledge of the
applicable time limits. See Santiago v. United States Postal Service,
EEOC Request No. 05950272 (July 6, 1995).
Finally, with respect to complainant's reference to contact with a
collateral duty Counselor about the time of the termination, the record
does not support her assertions. As ordered, the agency obtained
an affidavit from the Counselor. The now retired Counselor recalled
speaking with complainant but did not recall dates or the content of
the conversation. He attested that a matter was discussed but that no
complaint was filed.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 3, 2001
__________________
Date