01a46140
09-12-2005
Margaret A. West, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Margaret A. West v. Department of Health and Human Services,
01A46140
September 12, 2005
.
Margaret A. West,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A46140
Agency No. HRS-105-01
Hearing No. 380-2002-08096X
DECISION
On May 29, 2004, complainant, an Associate Field Director, GS-14, filed
a formal EEO complaint wherein she claimed that she was discriminated
against on the basis of her race (Caucasian) when on September 11, 2000,
she was not selected for the position of Deputy Field Director.<1>
The agency accepted the complaint for investigation. Subsequent to the
completion of the investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). On February 27, 2003, the agency filed
a Motion for Summary Judgment. The agency argued that complainant was
untimely in her contact of an EEO Counselor. According to the agency,
although complainant was notified of her nonselection on September 11,
2000, she did not contact an EEO Counselor until February 28, 2001.
The agency contended that complainant had actual notice of the time
requirements and procedures for initiating an EEO complaint. The agency
stated that complainant was scheduled to receive comprehensive EEO
training in July 1999, that included coverage of the requirement that
complainants contact an EEO Counselor within 45 days of the alleged
discriminatory act. With regard to complainant's argument that she
was unaware of the 45-day limitation period, the agency challenged that
argument by noting that complainant contacted an EEO Counselor only two
days after her upgrade application was denied. The agency maintains that
complainant chose not to contact an EEO Counselor after her nonselection
because she did not want to jeopardize the support she was receiving
from agency officials for an upgrade of her position to the GS-15 level.
As for the merits of the complaint, the agency asserted that there is
no specific and substantial evidence of pretext or discriminatory intent
regarding complainant's nonselection.
In her Opposition to the agency's Motion for Summary Judgment, complainant
maintained that she was unaware of the 45-day limitation period for
contacting an EEO Counselor until February 28, 2001. Complainant claimed
that she did not contact an EEO Counselor until April 1, 2001. Complainant
argued that the agency did not provide her with any EEO training as
she did not attend the EEO training conducted in Seattle in July 1999.
Complainant asserted that there were no EEO postings in the common areas
of the Seattle office. With respect to the merits of her complaint,
complainant contended that a wealth of evidence supports a finding that
the selectee's race was at least a motivating factor in the selectee
being chosen over her.
By decision dated August 18, 2004, the AJ granted the agency's Motion
for Summary Judgment. The AJ found that complainant's EEO contact was
made in an untimely manner and he therefore dismissed the complaint
pursuant to 29 C.F.R. �� 1614.107(a)(2) and 1614.109(b). The AJ stated
that complainant's handwritten notes where she agreed not to file an
EEO complaint implicitly indicate knowledge of a deadline to initiate a
complaint. The AJ reasoned that complainant was waiting for the result
of her request for a grade increase before initiating an EEO complaint
with regard to her nonselection. The AJ found that complainant's contact
of an EEO Counselor two days after she learned that her position would
not be upgraded indicated that complainant had knowledge of the EEO
process and the need to timely contact an EEO Counselor. The AJ issued
complainant appeal rights to the Commission rather than transferring
the complaint to the agency for issuance of a final action.
Complainant subsequently filed the instant appeal with the Commission on
September 15, 2004. Complainant argues that the AJ erred by finding that
her awareness that she had a right to file an EEO complaint necessarily
also meant that she was aware of the procedural prerequisites and
time limits. Complainant maintains that she did not know she needed to
contact an EEO Counselor to initiate an EEO complaint and that she did
not know she needed to do so within 45 days.
In response, the agency asserts that complainant made a deliberate
decision not to file a complaint, and when her application for an
upgrade was denied, she knew how to initiate a complaint without delay.
The agency argues that complainant's experience with personnel rules
and procedures and her conduct clearly show that she was aware of the
complaint process and the need to act without delay. The agency argues
that if the AJ's decision on timeliness is overruled, then on remand
the AJ should be instructed to rule on the remaining grounds asserted
in its Motion for Summary Judgment.
Initially, we observe that the AJ erred in issuing complainant appeal
rights to the Commission. The AJ should have instead transferred the
complaint to the agency for issuance of a final action. However, in
light of the agency's opposition to complainant's appeal, we will treat
this matter as if the agency had adopted the AJ's decision.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request No. 05910474 (September
12, 1991) (citing Kale v. Combined Insurance Co. of America, 861 F.2d 746
(1st Cir. 1988)).
Upon review of the record, we find that the agency has not established
that complainant had actual or constructive notice of the 45-day
limitation period for contacting an EEO Counselor. Complainant claims
that she did not attend the EEO training session in July 1999 in Seattle.
The agency has not submitted evidence that establishes complainant
attended that training. Complainant argues that EEO posters were
not present in the common areas at her work facility. In its Motion
for Summary Judgment, the agency acknowledged that it had not yet been
able to obtain conclusive evidence that an EEO notice was posted in the
Seattle Field Office at the time in question. There is no indication in
the record that the agency has submitted such evidence since it filed
the Motion for Summary Judgment. We find that complainant's awareness
that she could utilize the EEO process with regard to her nonselection
was not by itself sufficient to establish that complainant had actual
or constructive notice of the 45-day limitation period for contacting
an EEO Counselor.
We note there is disagreement as to when complainant initiated contact
with an EEO Counselor. The agency asserts that complainant's EEO
contact occurred on February 28, 2001, two days after she learned that
her application for a position upgrade had been denied. The agency
utilizes complainant's prompt EEO contact after the denial to support
its position that complainant was aware of the 45-day limitation period.
Complainant maintains that she became aware of the 45-day limitation
on February 28, 2001, but that she did not initiate contact with an
EEO Counselor until April 2001. Assuming arguendo, that complainant
initiated contact with an EEO Counselor on February 28, 2001, we find
that still would not establish that complainant had actual or constructive
notice of the 45-day limitation period. Based on the evidence within the
record, we find that complainant initiated contact with an EEO Counselor
in a timely manner.
Accordingly, the decision in this matter is REVERSED and we REMAND
this complaint to the agency for further processing pursuant to the
Order herein.
ORDER
The agency shall request that the Hearings Unit of the EEOC's Seattle
District Office schedule a hearing with regard to this complaint.
The agency is directed to submit a copy of the complaint file to the
EEOC's Seattle District Office within 15 calendar days of the date this
decision becomes final for a decision from an Administrative Judge in
accordance with 29 C.F.R. � 1614.109. The agency shall provide written
notification to the Compliance Officer at the address set forth below that
the complaint file has been transmitted to the EEOC's Seattle District
Office. After receiving a decision from the EEOC Administrative Judge,
the agency shall issue a decision in accordance with 29 C.F.R. � 1614.110.
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
September 12, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Initially, complainant also claimed discrimination on the bases of her
race and sex (female) when on February 26, 2001, the agency failed to
upgrade her position to the GS-15 level. However, complainant withdrew
this claim from her complaint in her Opposition to the agency's Motion
for Summary Judgment.