01990409
02-15-2000
Francine Plummer, Complainant, v. James Lee Witt, Director, Federal Emergency Management Agency, Agency.
Francine Plummer v. Federal Emergency Management Agency
01990409
February 15, 2000
Francine Plummer, )
Complainant, )
)
v. )
) Appeal No. 01990409
James Lee Witt, ) Agency No. 98-014
Director, )
Federal Emergency Management Agency, )
Agency. )
_____________________________________)
DECISION
On October 9, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD), dated September 14, 1998, dismissing
her complaint for untimely counselor contact and failure to state a
claim.<1> The Commission accepts the appeal in accordance with EEOC
Order No. 960, as amended.
On July 18, 1997,<2> complainant contacted the EEO office regarding
claims 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.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on April 13, 1998, complainant filed a formal complaint on
the bases of race (Black) and reprisal.
The agency issued a FAD dismissing complainant's complaint. The FAD
framed complainant's claims as follows<3>:
In November 1992, management threatened her by advising her that she
was making it difficult for herself because she wanted to know why she
was performing two of the major duties of a GS-9 position description;
why the employee in the GS-9 position was not performing these duties;
and why she was being treated differently from her White coworker.
In February 1994, after talking to the Union about racial
discrimination, her February 8, 1994, approved requests for Sick Leave
were changed to Annual Leave by her supervisor without her knowledge.
On November 16, 1994, her performance was changed from Outstanding
to Exceptional. Management denied her appeal because she had used
Sick Leave, despite the fact that White coworkers who had Outstanding
ratings had used more Sick Leave than she.
On May 31, 1995, she was advised by the EEO Counselor that she did not
have substantial information to file an EEO complaint; the Counselor
failed to inform her of her appeal rights; and she was not provided
the opportunity to file a formal EEO complaint.
Complainant was assigned the work of a White female coworker who left
the Agency in 1993. Complainant was offered the position. However,
six months later, the position was abolished but she continued to
perform the GS-9 responsibilities through March 1998.
From 1992 through March 1998, management continually refused to allow
complainant to change her position description to reflect the work
she was actually performing. This would have provided complainant
the opportunity to acquire the same grade level as her former White
coworker.
Management continually denied complainant's requests for a desk audit
from 1992 until late 1997, during which time she sought EEO counseling.
After complainant requested an audit, two of her responsibilities in her
original GS-7 position description were assigned to other employees.
Complainant alleges, however, that she continued to perform these
responsibilities for several months and provided assistance and training
to a GS-12 White male on how to perform these tasks.
From 1992 until May 1997, complainant was forced to do all the work
as project manager for FedEx, without recognition, even though the
responsibilities were taken from her as a GS-7 and given to a GS-12
White male in 1994.
When a position description that matched complainant's responsibilities
was rated a GS-9 with a different title and job series, the Office of
Human Resources Management advised her that she could not acquire this
position as an accretion of duties. Complainant alleges the position
was posted and awarded to her on April 6, 1998, only after she contacted
the Office of Equal Rights about filing a formal EEO claim.
Complainant's manager refused to meet with neutral third parties to
resolve her issues and advised her that she would never promote her
because she had addressed her allegations of racial discrimination
with the Union.
After complainant made complainants of racial discrimination to EEO
on the failure of management to promote her to the same level as her
White coworker, several job functions that she had been performing as
a GS-7 were given to GS-12 white males. Complainant alleges she was
required to train a White male and assist him in performing his tasks
for several months.
On January 7, 1997, complainant's training request was canceled and
she was advised that there would be no more overtime.
On January 13, 1997, after complainant again requested her position
description be changed to reflect her duties, her second level
supervisor told her new supervisor that he was not going to do anything
about her requests for promotion, change in position description,
or desk audit.
In April 1997, complainant's requests for attending a job related
conference was refused after she expressed concern about racial
discrimination to her manager.
On April 4, 1997, complainant advised her supervisor about a job-related
conference. Complainant alleges she acquired training and cost related
information according to her supervisor's request, but she was denied
the opportunity to attend.
On May 5, 1997, complainant was advised of a new GSA contract for the
FedEx account and informed that she should attend a meeting because
she was the project officer for the account, despite the fact that
the FedEx responsibilities had been given to a White Male, GS-12.
Complainant alleges that the FedEx responsibilities, however, remained
in her position description and she had performed these duties in
the past.
On May 13, 1997, a White female coworker, GS-13, advised her to remove
the name of another White female, GS-12, coworker off all Requisition
and Commitment for Services and Supplies (40-1's) that she had done
and to place her name on them as project officer.
The agency dismissed claims 1, 2, and 3 for untimely counselor contact.
According to the FAD, the record did not indicate that complainant
contacted an EEO counselor within forty-five days of the alleged
incidents. Further, complainant alleged that on May 31, 1995 she
attempted to discuss the issues with a counselor. Claim 4 was dismissed
for failure to state a claim. Specifically, the agency indicated that
complainant was allowed to file a complainant, thereby rendering the
claim moot. The remaining claims, 5 - 18, were also dismissed for
failure to state a claim.
Claims 1, 2, and 3
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.
In the instant case, claims 1, 2, and 3 occurred in 1992 and 1994.
The nature of the claims indicate that complainant reasonably suspected
discrimination at the time of the incidents. The record reflects that
complainant's counselor contact was well beyond the forty-five day time
limitation. Complainant does not contend that she was unaware of the
time limitation for contacting an EEO Counselor. Accordingly, we do
not find sufficient reason for extending the time limit. The agency's
decision to dismiss claims 1, 2, and 3 for untimely counselor contact
is AFFIRMED.
Claim 4
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an
agency shall dismiss a complaint that fails to state a claim. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by
that agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's
federal sector case precedent has long defined an "aggrieved employee"
as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
22, 1994).
In claim 4, complainant alleged that she was not provided an opportunity
to file a formal EEO complaint. She was advised that she did not have
sufficient information to file a complaint, and was not informed of
her appeal rights. The agency dismissed claim 4 on the grounds that it
failed to state a claim. According to the FAD, because complainant was
allowed to file a complaint, the claim was rendered moot. The Commission
finds that the agency properly dismissed claim 4 for failure to state
a claim, albeit for a different reason. When a complainant raises an
allegation of improper processing, the agency is required to refer
the complainant to the agency official responsible for the quality
of complaint processing and that these individuals should earnestly
attempt to resolve dissatisfaction with the complaints process as early
as possible. See EEOC Management Directive (MD) 110 (5-25), as revised,
November 9, 1999; Gaines v. Dept. of Navy, EEOC Request No. 05970321
(June 12, 1997). Therefore, the agency's dismissal of claim 4 for
failure to state a claim is AFFIRMED.
Claims 5 - 18
As an initial matter, the Commission notes that several of complainant's
claims encompass the more general issue of failure to promote, where
complainant claims that she performs duties and responsibilities which
exceed her job description and title. Accordingly, we find that the
claims addressing duties, job description, and desk audits (claims 5-12,
and 17) should not be treated as separate and distinct claims, but
part of complainant's broader claim of failure to promote. See Meaney
v. Department of the Treasury, EEOC Request No. 05940169 (November 3,
1994); Ferguson v. Department of Justice, EEOC Request No. 05970792
(March 20, 1999). The Commission finds that complainant's failure to
promote claim alleges a harm a loss with respect to a term, condition,
or privilege of her employment. Therefore, the agency's decision to
dismiss claims 5 - 12, and 17 for failure to state a claim was improper
and is REVERSED.
The only proper questions in determining whether an claim is within the
purview of the EEO process are (1) whether the complainant is an aggrieved
employee and (2) whether she has alleged employment discrimination
covered by the EEO statutes. An employee is "aggrieved" is she has
suffered direct and personal deprivation at the hands of the employer.
See Hobson v. Department of the Navy, EEOC Request No. 05891133 (March 2,
1990). In claims 13, 15 and 16 complainant alleged that her requests for
training were refused. These claims are sufficient to render complainant
an aggrieved employee. Because complainant has alleged that the adverse
action was based on race and reprisal, she has raised claims within the
purview of the EEOC regulations. Accordingly, the agency's decision to
dismiss claims 13, 15, and 16 for failure to state a claim was improper
and is REVERSED.
In claims 14 (remark from second level supervisor to new supervisor)
and 18 (told to remove name of co-worker on forms) complainant has
not stated how the alleged agency actions caused her a harm or loss.
Further, with respect to claim 14, we note that the Commission has
repeatedly found that remarks or comments unaccompanied by a concrete
agency action are not a direct and personal deprivation sufficient to
render an individual aggrieved for the purposes of Title VII. See Backo
v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. United States Postal Service, EEOC Request No. 05940695
(February 9, 1995). Therefore, we find that the dismissal of claims 14
and 18 was proper and is AFFIRMED.
The agency's decision dismissing claims 1 - 4, 14, and 18 is AFFIRMED.
The agency's decision dismissing claims 5 - 13, and 15- 17 is REVERSED and
we REMAND claims 5 - 13 and 15 - 17 to the agency for further processing
in accordance with this decision and applicable regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (T1199)
This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision 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. 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 (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:
February 15, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2With respect to the date of initial contact, we note that the FAD does
not provide a date but cites complainant's reference to May 31, 1995.
The EEO Counselor's Report presents two dates: on July 18, 1997 an
attempted resolution by OER occurred and on December 1, 1997, EEO
counseling was initiated.
3Although complainant's claims were not numbered in the FAD, we number
them here for clarification.