Jerri M. Lawhorn, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01996460 (E.E.O.C. Nov. 5, 1999)

01996460

11-05-1999

Jerri M. Lawhorn, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Jerri M. Lawhorn v. Department of the Treasury

01996460

November 5, 1999

Jerri M. Lawhorn, )

Appellant, )

)

v. ) Appeal No. 01996460

) Agency No. 99-1243

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

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 Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq. The final agency decision was received by

appellant on August 4, 1999. The appeal was postmarked August 18, 1999.

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.

Appellant contacted an EEO counselor on April 6, 1999, regarding

allegations of discrimination. Specifically, appellant alleged that

she was discriminated against when:

(1) on April 9, 1999, she was removed from her position with the agency;

(2) on March 9, 1999, she was not assigned a "Job Coach" to travel with

her to perform her duties; and

(3) on January 8, 1999 and January 12, 1999, she was denied the

opportunity to return to work.

Informal efforts to resolve appellant's concerns were unsuccessful.

Accordingly, on June 14, 1999, appellant filed a formal complaint

alleging that she was the victim of unlawful employment discrimination

on the bases of sex, disability, and retaliation.

On July 28, 1999, the agency issued a final decision (FAD) accepting for

investigation allegations (1) and (2) of the complaint but dismissing

allegation (3) as untimely. Specifically, the agency determined that

appellant failed to seek EEO counseling within forty-five days of the

incidents described in allegation (3) of her complaint.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO 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 Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988).

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.

Regarding allegation (3), appellant's EEO contact of April 6, 1999 was

approximately three months after the agency purportedly denied her the

opportunity to return to work on January 8, 1999 and January 12, 1999.

On appeal, however, appellant argues that in January 1999, she requested

EEO information from her supervisor, but did not receive any response.

Appellant also argues that she contacted the agency personnel department

for information, but received no information regarding the EEO office.

Upon review, however, the Commission is unable to determine whether

appellant unsuccessfully attempted to pursue the EEO complaint process

prior to April 6, 1999. Accordingly, the agency's decision dismissing

allegation (3) for failure to timely contact an EEO Counselor is VACATED.

Allegation (3) is REMANDED to the agency in accordance with this decision

and the Order below.

ORDER

The agency is ORDERED to supplement the record with information concerning

appellant's attempts to obtain EEO information from her supervisor and

from the agency personnel office, including affidavits from appellant,

her supervisor, and members of the personnel office regarding the

alleged contact. These affidavits shall address the issue of whether

appellant exhibited an intent to begin the EEO process at that time,

and any other relevant information regarding complainant's attempts to

obtain EEO information pertaining to allegation (3). After conducting

the supplemental investigation, the agency shall, within sixty (60) days

of the date this decision becomes final, issue a letter to complainant

accepting the complaint for investigation and/or issue a new final

decision dismissing the complaint. A copy of the letter accepting the

complaint and/or a copy of the new final agency decision dismissing the

complaint 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. �l6l4.604(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:

11/05/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations