Jacquelyn P. Keys, Appellant,v.Alan Greenspan, Chairman, Federal Reserve System, Agency.

Equal Employment Opportunity CommissionAug 27, 1999
01985992 (E.E.O.C. Aug. 27, 1999)

01985992

08-27-1999

Jacquelyn P. Keys, Appellant, v. Alan Greenspan, Chairman, Federal Reserve System, Agency.


Jacquelyn P. Keys v. Federal Reserve System

01985992

August 27, 1999

Jacquelyn P. Keys, )

Appellant, )

)

v. ) Appeal No. 01985992

) Agency No. 98-03-002

Alan Greenspan, )

Chairman, )

Federal Reserve System, )

Agency. )

)

DECISION

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., and the Age Discrimination in Employment Act

of 1967, as amended, 29 U.S.C. �621 et seq. Appellant received the final

agency decision on July 8, 1998. The appeal was postmarked July 29, 1998.

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 on the grounds of failure to contact an EEO Counselor in a

timely manner.

BACKGROUND

The record reveals that in a memorandum dated December 2, 1997, the

Division of Banking Supervision and Regulation recommended to the Division

of Human Resources Management that appellant be promoted to grade FR

22/23 with an appropriate title change and a salary increase of 10%.

Appellant initiated contact with an EEO Counselor on January 12, 1998.

On January 30, 1998, appellant left a voice message for the EEO Counselor

wherein she requested a report of their January 12, 1998 meeting.

In an e-mail message dated February 4, 1998, appellant stated to the EEO

Counselor that the meeting of January 12, 1998, concerned an EEO matter.

Appellant stated that she raised her allegations of discrimination

based on her age and sex during that meeting. Appellant stated that

the EEO Counselor told her that she would speak to other people and

get back to her. Appellant further stated that she called the EEO

Counselor on February 2, 1998, and at that time, the EEO Counselor told

her she believed that this matter was a work-related grievance rather

than an EEO matter. In an e-mail message dated February 5, 1998, the

EEO Counselor informed appellant that it was not her recollection that

appellant referred to discriminatory acts at the January 12, 1998 meeting.

The EEO Counselor noted that appellant did not clearly state allegations

of discrimination until February 4, 1998. In an e-mail message dated

February 11, 1998, appellant stated to the EEO Counselor that the reason

she came to her is because she is an EEO Counselor and she wanted to

discuss her discrimination complaint. Appellant maintained that she told

the EEO Counselor that she had been discriminated against based upon her

age and sex and that her pension rights would be adversely impacted.

Appellant stated that although her reclassification was approved in

December 1997, by her Division, nothing has been formally approved.

Appellant met again with the EEO Counselor on February 12, 1998.

On March 17, 1998, appellant filed a formal EEO complaint wherein she

alleged that she had been discriminated against on the bases of her sex

(female) and age (62) when she did not receive a salary and job title

reflecting her duties and responsibilities.

In its final decision, the agency dismissed the complaint on the grounds

that appellant failed to contact an EEO Counselor in a timely manner. The

agency determined that appellant should have had a reasonable suspicion

of discrimination in October 1997, when she discovered a job posting for

a grade level 22-24 position, with similar responsibilities and duties as

she was performing. Further, the agency stated that appellant has been

questioning her job classification for the past 8-10 years. The agency

noted that appellant stated that this issue was raised during her annual

performance reviews, budget time, and mid-year budget reviews.

On appeal, appellant contends that the discriminatory event at issue was

the failure or refusal of the agency to retroactively recommend her for

reclassification, and to not recommend her for promotion to the highest

step within grade 23. Appellant notes that fewer than 45 days passed

from the December 2, 1997 memorandum to the Division of Human Resources

Management until she met with an EEO Counselor on January 12, 1998.

Further, appellant maintains that she raised discrimination in that

meeting with the EEO Counselor, and that the EEO Counselor only states

that it is her recollection that she did not mention discrimination.

In response, the agency submits an affidavit from the EEO Counselor,

who states that when she explained the categories of discrimination to

appellant, appellant did not inform her that she wanted to pursue an EEO

complaint and she did not request EEO counseling. The EEO Counselor

states that appellant replied that she did not know what she wanted

to do. The EEO Counselor notes that she did not provide appellant

with the notice of rights because she did not believe appellant was

initiating the EEO process. According to the EEO Counselor, she advised

appellant that the matter appeared to be a dispute with management that

appellant may want to raise with the Employee Relations Office, and

that the Employee Relations Office subsequently worked with appellant

to resolve her concerns. The agency maintains that the January 13,

1998 meeting did not constitute an initiation of the EEO process.

The agency argues that the earliest point that appellant initiated the

EEO process was on January 30, 1998, when appellant requested that the

EEO Counselor give her a copy of her report. With regard to the nature

of the discriminatory event, the agency asserts that in her complaint,

appellant stated that her allegations were disparity in pay, grade, and

benefits for work performed. The agency argues that appellant has raised

these issues over a period of 8-10 years. Further, the agency asserts

that appellant was aware of the disparity in pay, grade, and benefits

for work performed no later than October 1997, when she saw a vacancy

announcement for a position that described her job responsibilities.

The agency maintains that the memorandum of December 2, 1997, was not

referred to by appellant as the date of the discriminatory event during

the processing of the complaint.

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 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the

Commission shall extend the 45-day time limit when the individual shows

that he or she was not notified of the time limits and was not otherwise

aware of them, that he or she did not know and reasonably should not have

known that the discriminatory matter or personnel action occurred, that

despite due diligence he or she was prevented by circumstances beyond his

or her control from contacting the counselor within the time limits, or

for other reasons considered sufficient by the agency or the Commission.

Upon review of the record, we find that the alleged discriminatory event

at issue is the December 2, 1997 letter from the Division of Banking

Supervision and Regulation to the Division of Human Resources Management

that failed to retroactively reclassify appellant. Appellant's concern

about the disparity in her pay, grade, and benefits is a reflection

of her belief that she has not been classified properly in terms of

her job responsibilities. We further find that appellant initiated

contact with an EEO Counselor on January 12, 1998. Although appellant

may not have conveyed in a succinct manner to the EEO Counselor her

belief that she was being discriminated against, we find that appellant

is credible and that in general she presented the issue of her not

being retroactively reclassified as a form of disparate treatment.

Appellant's contact of an EEO Counselor on January 12, 1998, was within

the 45-day limitation period. Accordingly, the agency's decision to

dismiss appellant's complaint on the grounds of untimely EEO contact

was improper. The complaint is hereby REMANDED for further processing

in accordance with the ORDER below.

ORDER (E1092)

The agency is ORDERED to process the remanded complaint in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded complaint 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 the 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:

August 27, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations