Carol E. Gladden, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionDec 14, 2001
01A15024_r (E.E.O.C. Dec. 14, 2001)

01A15024_r

12-14-2001

Carol E. Gladden, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.


Carol E. Gladden v. Department of the Treasury

01A15024

December 14, 2001

.

Carol E. Gladden,

Complainant,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A15024

Agency No. 01-2243

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision 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 March 27, 2001,<1> complainant contacted the EEO office claiming

that she was discriminated against when she was suspended for three

days in April 2000. Informal efforts to resolve complainant's concerns

were unsuccessful. Subsequently, on May 16, 2001, complainant filed a

formal complaint based on race and sex.

On July 20, 2001, the agency issued a decision dismissing the complaint

for untimely EEO Counselor contact. Specifically, the agency determined

that on January 13, 2000, complainant was issued a proposed letter of

suspension for fourteen days; and that on March 21, 2000, the proposed

suspension was reduced to three days, which complainant served in April

2000. The agency determined that complainant, however, did not contact

the EEO office until nearly a year later, in March 2001. According to

the agency, when complainant was given the opportunity to explain why

her contact was beyond the time limitation, she stated that it was not

until a February 26, 2001 meeting that she suspected discrimination;

however, the agency determined that complainant had also asserted that

she began to research records in April 2000, wherein she found four other

violations similar to her own that were not disciplined. Therefore,

the agency concluded that complainant had a reasonable suspicion in April

2000, but did not contact a Counselor within forty-five days. Finally,

the agency also dismissed the complaint for failure to state a claim.

The agency noted that the fact that coworkers may have engaged in conduct

for which complainant was previously disciplined does not state a claim.

On appeal, complainant explains that once the suspension was effective

she elected to file a grievance because, although she found the

discipline to be severe, she did not believe the action was motivated

by discriminatory animus. Complainant contends that beginning in

March 2000, she was assigned to three separate temporary duties, all

outside her permanent duty station; and that it was not until after

she returned to the permanent duty station in January 2001, during a

meeting on February 26, 2001, that complainant's suspicions were raised.

During the meeting, complainant asserts that the Chief stated that

�several 8-hour notifications have been missed and eventually we will

be held accountable and you may be disciplined in the future if you are

not careful.� This caused complainant to believe that while she had

been disciplined for violating the personal search policy, apparently

other supervisors had not been disciplined.

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.

Complainant contends she was discriminated against when she was suspended

for violating the U.S. Customs Personal Search Policy. The agency

concluded that complainant reasonably suspected discrimination in April

2000, but did not contact an EEO Counselor until March 27, 2001, well

beyond the forty-five day time limit. As noted above, complainant argues

that she did not suspect discrimination until February 26, 2001, when

there was an indication that other supervisors had not been disciplined

for similar policy violations. Moreover, while the agency understood

complainant's explanation to mean that she began conducting research

in April 2000, the record indicates that she performed the research

after the February 26, 2001 meeting and searched documents created

after her April 2000 suspension. Therefore, the Commission finds that

complainant did not reasonably suspect discrimination until February 26,

2001, thereby making her March 2001 contact timely.

The regulation set forth at 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 21, 1994).

The agency also dismissed the complaint for failure to state a claim.

While the agency reasoned that the failure to discipline others does not

state a claim, we find that complainant is claiming discrimination for the

suspension she was issued. Learning about the agency's inaction toward

other employees merely raised her suspicions about her own suspension.

Therefore, we find that the April 2000 suspension is sufficient to render

complainant an �aggrieved� employee. Because complainant has alleged that

the adverse action, the suspension, was based on race and sex, she has

raised a claim within the purview of the EEOC regulations. See Hobson

v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).

Accordingly, the agency's decision to dismiss the complaint was improper

and, and is hereby REVERSED. The complaint is REMANDED to the agency for

further processing in accordance with this decision and the Order below.

ORDER (E0900)

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 (K0501)

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 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 (M0701)

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 (R0900)

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 (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

December 14, 2001

__________________

Date

1The Commission notes that documents from complainant indicate that

she contacted the EEO Manager on March 6, 2001. However, the disparity

in the two dates, approximately three weeks apart, does not affect our

disposition of this case.