0120122129
10-18-2012
Ingrid Smalls, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Ingrid Smalls,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120122129
Agency No. 2012-24236-FAA-03
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 6, 2012, dismissing a formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Secretary at the Agency's facility in College Park, Georgia. Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, color, sex, age, and in reprisal for prior protected activity.
In its final decision dated March 6, 2012, the Agency determined that Complainant's formal complaint was comprised of the following claim:
Effective February 28, 2009, [Complainant was] downgraded from a Grade F to a Grade E.
The Agency dismissed Complainant's formal complaint on the grounds of untimely EEO Counselor contact. The Agency found that the downgrade was effective on February 28, 2009, but that Complainant did not contact an EEO Counselor until October 28, 2011, beyond the applicable time limit. The Agency further stated "although [Complainant] claim[s] that [she was] not aware of the downgrade until October 19, 2011, when [she] received an email concerning the change it is our position that [she] should have been aware of the downgrade shortly after the personnel action occurred. The Leave and Earning Statements that [Complainant] received shortly after the personnel action occurred, would have reflected [her] grade level, thereby indicating that the downgrade had taken place."
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the Agency's final decision dismissing her formal complaint is improper. Complainant asserts that she has been subjected to a hostile work environment when she was downgraded from a grade F to an E and subsequently found not qualified for various promotional opportunities. Complainant asserts that her EEO contact was timely. Specifically, she states that she had "been applying for promotions but was not aware of the sabotage of her personnel records until she was notified via email from the Human Resource Office stating that personnel actions were added to her electronic official Personnel Folder (eOPF) on October 19, 2011. Upon the realization that her file had been purposely sabotaged, she made Counselor contact on October 28, 2011-well within the prerequisite 45 days."
ANALYSIS AND FINDINGS
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. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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.
The Agency improperly dismissed Complainant's formal complaint on the grounds of untimely EEO Counselor contact. In an attachment to Complainant's formal complaint, Complainant asserts "[o]n October 19, 2011, I found out there were several personnel actions that had been added to my personnel folder. Upon examining these documents, I discovered that [someone] initiated the personnel actions to lower my grade and change my series from Management Assistant FV-344-F to Secretary FV-318-E."
The record also contains a copy of the EEO Counselor's Report. The Report provides, in pertinent part, that: "on [October 19, 2011], [Complainant] stated she was informed that she was downgraded from a Management Assistant, FV-0344-F to a Secretary, FV-0318-E without her knowledge. [Complainant] stated she received an email from the eOPF system informing her of the change."
The record also contains a copy of an email to Complainant dated October 19, 2011 informing her that various documents had been added to her OPF. The record reflects that various Notification of Personnel Action Forms were added to Complainant's OPF. These forms listed the Nature of the Action as "Correction" and the remarks section indicated that corrections were made regarding Complainant's position and title from a Management Assistant position grade F to a Secretary, Grade E. The forms were processed on October 17, 2011, although the forms reflect various past retroactive effective dates.1 Based on the foregoing, we find that Complainant reasonably suspected discrimination with respect to her downgrade on October 19, 2011, when she received the email containing various documents that had been added to her eOPF indicating changes to her position and grade.2 Thus, we find that she timely initiated EEO contact on October 28, 2011.
CONCLUSION
We REVERSE the Agency's final decision dismissing Complainant's formal complaint and we REMAND this matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 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 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 within ninety (90) calendar days from the date that you receive this decision. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 18, 2012
Date
1 The record also contains a memorandum from the acting Quality Control Group Manager to Complainant. Therein, the Manager asserts that there were errors with Complainant's organizational code of which management became aware in October 2011 and that Human Resources "effected the correction." The memorandum provided, in part, that "it is unfortunate that an error occurred and was not corrected for approximately two years."
2 We are not persuaded by the Agency's assertion that Complainant should have reasonably suspected discrimination earlier because she received Leave and Earnings Statements with the downgraded E grade. The record is devoid of evidence that Complainant had actually reviewed statements earlier designating her position at an E grade. In addition, as set forth above, various documents reflect that changes/corrections were made to Complainant's OPF in October 2011, regarding her position and grade.
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0120122129
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122129