01981557_r
03-24-1999
G. Diane Queen, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
G. Diane Queen, )
Appellant, )
)
v. ) Appeal No. 01981557
) Agency No. DOT 2-97-2083
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency 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. The final agency decision was received by
appellant on November 18, 1997. The appeal was postmarked December 11,
1997. 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 appellant's
complaint due to untimely EEO Counselor contact.
BACKGROUND
The record indicates that on December 5, 1996, appellant, an
Administrative Officer, GS-13, contacted an EEO Counselor with regard
to her complaint. Unable to resolve the matter informally, appellant
filed a formal complaint dated May 15, 1997, alleging that from August
1995 to November 10, 1996, she was not afforded the same opportunities,
assistance or considerations that her white, male coworkers were afforded
with regard to her promotion/reclassification to a GS-13 position,
i.e., by delaying the processing of her promotion, subjecting her to a
desk audit, and requiring her former GS-12 position to be advertised.
Appellant indicated that on November 27, 1996, she became aware of
discrimination when she learned that a white, male individual submitted
a SF-52 for his promotion on November 25, 1996, and the effective date of
the promotion was backdated to November 24, 1996. Appellant asserted that
she also learned that that individual was given assistance by a Personnel
Officer, and was not subjected to a desk audit nor was he required to
meet with his supervisor to discuss his new position description, as
she was. Appellant indicated that although she submitted a SF-52 for
her promotion in June 1996, the promotion was not made effective until
November 10, 1996.
On November 10, 1997, the agency issued a final decision dismissing the
complaint due to untimely EEO Counselor contact. The agency defined
the allegation in the complaint as whether appellant was discriminated
against when she was not afforded the same opportunities, assistance or
considerations that it afforded her white coworkers when she requested
that her position be classified as Administrative Officer, GS-13, in
August 1995. The agency stated that the alleged incident occurred in
August 1995, but she did not contact an EEO Counselor until December 5,
1996, one year after the discriminatory incident.
On appeal, appellant contends that she raised the August 1995 incident
only as background information, and the main issue in the complaint
involves her being treated differently than her coworkers concerning her
promotion/reclassification to a GS-13 position which was not effective
until November 10, 1996.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
Initially, we note that the agency, in its final decision, misdefined the
allegations in the complaint. Upon review, we find that the allegations
are more properly defined as whether appellant had been discriminated
against when from August 1995 to November 10, 1996, she was not afforded
the same opportunities, assistance or considerations that her white, male
coworkers were afforded with regard to her promotion/reclassification
to a GS-13 position, i.e., by delaying the processing her promotion,
subjecting her to a desk audit, and requiring her former GS-12 position
to be advertised.
The agency, in its final decision, stated that the alleged incident
occurred in August 1995, and appellant's EEO Counselor contact on December
5, 1996, was beyond the 45-day time limit. Appellant, however, indicated
that she did not become aware of the alleged discrimination occurring
from August 1995 to November 10, 1996, until November 27, 1996, when she
learned that an identified white, male individual was treated better than
she was concerning his promotion. Appellant did not have a reasonable
suspicion of discrimination until November 27, 1996. The agency failed to
present any evidence or argument to rebut this contention. Accordingly we
find that appellant's EEO contact on December 5, 1996, which was within
45 days after she first suspected the alleged discrimination. Based on
the foregoing, we find that appellant's EEO Counselor contact was timely.
CONCLUSION
The agency's decision to dismiss appellant's complaint due to untimely
EEO Counselor contact was improper and is REVERSED. The complaint is
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
The agency is ORDERED to resume processing of the complaint as defined
herein in accordance with 29 C.F.R. �1614.108. The agency, within
thirty (30) calendar days of the date this decision becomes final,
shall acknowledge to appellant that it has received the complaint.
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 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 (R0993)
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. 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 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 (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:
March 24, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations