01975922
10-20-1998
Andrea Westbrooks, Appellant, v. John H. Dalton, Secretary, Department of the Navy, (Marine Corps), Agency.
Andrea Westbrooks v. Department of the Navy
01975922
October 20, 1998
Andrea Westbrooks, )
Appellant, )
)
v. ) Appeal Nos. 01975922, 01975924
) Agency Nos. DON (MC) 97-67001-036
John H. Dalton, ) DON (MC) 97-67001-037
Secretary, )
Department of the Navy, ) (Consolidated)
(Marine Corps), )
Agency. )
______________________________)
DECISION
On July 2, 1997, the agency issued two final decisions (FAD-1 and FAD-2),
which dismissed two formal EEO complaints by appellant, both dated June
9, 1997, and alleging a violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq.
In the absence of evidence to the contrary, it appears appellant, by her
attorney, timely appealed each FAD on July 22, 1997.<1> Therefore, we
have accepted appellant's appeals in accordance with EEOC Order No. 960,
as amended. Although we have consolidated the appeals, we review each
matter separately for the purpose of clarity.
Appeal No. 01975922
In FAD-1, the agency framed appellant's issues as alleging reprisal when
"she was detailed numerous times." FAD-1 averred that appellant had been
detailed from the position of GS-2005-4 Supply Clerk, in the Logistics
Department (LD) to the position of GS-1105-4 Purchasing Agent in the LD.
FAD-1 indicated appellant had been "detailed for a period not to exceed
(NTE) 12 January 1997, effective 15 September 1996." FAD-1 stated
that appellant, by her attorney, did not initiate EEO counseling until
December 2, 1996. FAD-1 concluded appellant's EEO counselor contact
was beyond the time limitation of 45 days for initiating EEO counseling
and was thus untimely. See 29 C.F.R. ��1614.105(a)(1), and .107(b),
in pertinent part. FAD-1 also dismissed, for failure to state a claim,
appellant's allegation that, based on reprisal, "her leave was subject
to ongoing scrutiny." See 29 C.F.R. �1614.107(a).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter, or effective date of the personnel action,
alleged to be discriminatory. The 45 day time limit shall be extended
when appellant shows that he/she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred.
29 C.F.R. �1614.105(a)(2). The Commission has applied a "reasonable
suspicion" standard to the triggering date for determining the timeliness
of the contact with an EEO Counselor. Cochran v. United States Postal
Service, EEOC Request No. 05920399 (June 18, 1992). Under this standard,
the time period for contacting an EEO Counselor is triggered when the
complainant should reasonably suspect discrimination, but before all
the facts that would support a charge of discrimination may have become
apparent. Id.
The Commission finds that the agency properly dismissed appellant's
allegation, pertaining to her details, for untimely EEO counselor contact.
We find that appellant initiated EEO counseling on December 2, 1996.
However, we also find that the agency detailed appellant from Supply
Clerk to Purchasing Agent effective July 22, 1996, NTE November 18, 1996.
That detail appears to have been terminated effective September 15, 1996.
We find the agency detailed appellant a second time, from Supply Clerk
to Purchasing Agent, effective September 15, 1996, NTE January 12,
1997. That detail appears to have been terminated effective November
10, 1996. The Commission finds that appellant should have reasonably
suspected discrimination on September 15, 1996, the effective date
of her second detail. We find appellant has offered no arguments
on appeal to merit an extension of the applicable time limitations.
See 29 C.F.R. �1614.604(c) (time limits subject to waiver, estoppel,
and equitable tolling). Accordingly, we find that the agency properly
dismissed her detail allegation pursuant to 29 C.F.R. �1614.107(b).
However, the Commission finds the agency erred in dismissing, for failure
to state a claim, appellant's allegation pertaining to the agency's
allegedly scrutinizing her leave requests. We are not persuaded by
the agency's arguments on appeal to reach a contrary conclusion. The
Commission has found the issue of "increased scrutiny" for prohibited
reasons to be actionable. See Blaha v. U.S. Postal Service, EEOC Request
No. 05910728 (October 25, 1991).
EEOC Appeal No. 01975924
FAD-2 framed appellant's complaint as alleging that, based on reprisal,
the agency issued her "a lowered performance appraisal for the period
of 1 January 1996 through 6 July 1996." FAD-2 dismissed appellant's
complaint for untimely EEO Counselor contact, declaring that her
attorney's September 26, 1996 EEO contact was beyond the applicable time
limitation of 45 days from the date appellant asserted "she became aware
of the lowered appraisal," that is, August 7, 1996.
The Commission finds the agency has failed to meet its burden of providing
sufficient evidence in support of the FAD and its determination as to
the timeliness of appellant's EEO Counselor contact. See Henry v. United
States Postal Service, EEOC Request No. 05940897 (May 18, 1995), citing
Gens v. Department of Defense, Defense Logistics Agency, EEOC Request
No. 05910837 (January 31, 1992); and see Guy v. Department of Energy,
EEOC Request No. 05930703 (January 4, 1994). We are not persuaded by
the agency's argument on appeal to reach a contrary conclusion.
We find, in the present case, no evidence from the agency as to
when appellant received the performance appraisal at issue; and
conflicting evidence from appellant in this regard. The performance
appraisal submitted by the agency in its complaint file, for example,
lacks appellant's signature and date when she received the disputed
rating. Meanwhile, appellant identified three dates as to when
the alleged discrimination occurred: August 7, 1996 (in her request
for EEO counseling); August 22, 1996 (in her acknowledgment of her
rights and responsibilities); and August 27, 1996 (in her formal EEO
complaint). Consequently, the Commission is unable to assess which, if
any, of those three dates is dispositive for determining when appellant
should have initiated EEO Counselor contact. Accordingly, the Commission
will direct the agency to conduct a supplemental investigation limited
to that question, i.e. the date of the triggering event that caused
appellant to initiate EEO counseling in the present matter.
Having reviewed the entire record in both appeals, the arguments on
appeal, including those not expressly addressed herein, and for the
foregoing reasons, the Commission in these consolidated appeals renders
the following decision. As to EEOC Appeal No. 01975922, the Commission
AFFIRMS FAD-1's dismissal of appellant's details allegation, and VACATES
the agency's dismissal of appellant's claim concerning scrutiny of her
leave requests. As to EEOC Appeal No. 01975924, the Commission VACATES
FAD-2's dismissal of appellant's performance appraisal allegation.
Appellant's complaints are hereby REMANDED in accordance with the
Commission's decision and applicable regulations. The parties are
advised that the Commission's decision is not a decision on the merits
of appellant's complaints. The agency shall comply with the Commission's
ORDERS as set forth below, and shall consolidate appellant's complaints,
where feasible, pursuant to 29 C.F.R. �1614.606.
ORDER
As to EEOC Appeal No. 01975922, the following Rights and Orders apply:
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to 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 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 acknowledgement 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.
As to EEOC Appeal No. 01975924, the following Rights and Orders apply:
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall obtain from appellant, through service on her
attorney, if any, in accordance with 29 C.F.R. �1614.605(d), of an
appropriate request in accordance with 29 C.F.R. �1614.107(g); or
by direct service on appellant in the absence of an attorney, for a
statement under oath or affirmation as to when appellant received a
copy of the performance appraisal rating at issue.
2. The agency shall also obtain from appellant, or, alternatively,
shall make available to appellant's attorney, or to appellant, if she
no longer has an attorney, as well as to the Commission, a true copy, if
any, of the performance appraisal rating at issue containing appellant's
signature and the date she received the performance appraisal rating.
3. Thereafter, the agency shall issue a new final decision, with appeal
rights to the Commission, either accepting appellant's complaint for
investigation or again dismissing it. If the agency dismisses appellant's
complaint, it shall state the legal grounds, factual bases, and evidence
relied upon. The completion of the supplemental investigation and
issuance of the new final decision must be completed within ninety
(90) calendar days of the date the Commission's decision becomes final.
A copy of the final decision must be submitted 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:
October 20, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Appellant also appears to have raised no new contentions on either appeal.