Margaret Powell, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionNov 10, 1998
01976951 (E.E.O.C. Nov. 10, 1998)

01976951

11-10-1998

Margaret Powell, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Margaret Powell v. Department of Transportation

01976951

November 10, 1998

Margaret Powell, )

Appellant, )

)

v. ) Appeal No. 01976951

) Agency No. 2-97-2110

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

)

DECISION

The appellant timely filed an appeal with this Commission from a final

decision, dated August 15, 1997, which the agency issued pursuant to EEOC

Regulation 29 C.F.R. �1614.107(b). The Commission accepts the appellant's

appeal in accordance with EEOC Order No. 960, as amended.

The appellant alleged in her June 26, 1997 complaint that the agency

discriminated against her based on her race, color, sex, age and physical

disability by the following actions and failures to act: (1) requiring

her to perform the duties of the Manager, Historical Black Colleges &

University Program (HBCU), position beginning January 1, 1995, without

officially assigning her to the position and providing her with a position

description; (2) continuously failing to provide the appellant with

an official performance plan with performance objectives and standards;

(3) failing to provide the appellant with annual performance ratings; (4)

failing to have the appellant report at a level comparable to employees

with similar program responsibilities; (5) requiring her to work for

FM-15 pay while others in similarly situated positions were paid at the

FM-15 level; and (6) treating her differently than similarly situated

employees, e.g., by instructing her to allow others to copy her work,

and by rebuking her based on unsubstantiated allegations without an

investigation.

The agency dismissed the appellant's complaint on the ground that her

receipt of EEO counseling on June 17, 1997 was untimely. The decision

found that the appellant knew for a year and a half prior to receiving

counseling that she had not been officially appointed to the HBCU Manager

position, that she had not received an official performance plan with

performance standards, and that she had not received a performance rating

for the period. The decision concluded that, therefore, for a year and

a half the appellant had a reasonable suspicion that discrimination may

have been the cause for her not being officially appointed to the HBCU

Manager position. The decision further found that the appellant had not

presented adequate justification for extending the limitation period.

After a review of the record, including the appeal submissions of the

parties, the Commission finds that the agency erred when it dismissed

the appellant's complaint for untimely EEO counselor contact.

According to the EEO Counselor's Report, the appellant requested

counseling on May 20, 1997. That date, rather than the date the appellant

first received counseling, is the governing date for determining whether

the appellant timely sought EEO counseling. Otherwise, an agency could

render any complaint untimely merely by delaying the starting date of

the counseling. Thus, a discriminatory action or practice which occurred

on or after April 5, 1997, or continued into the 45-calendar day period

which preceded the appellant's May 20, 1997 counseling request should

be deemed timely.

According to the EEO Counselor's Report, the agency continued to

require that the appellant perform the HBCU Program Manager duties

without officially assigning the appellant to the HBCU Program Manager

position and providing her with a position description and official

performance plan with performance objectives. Thus, these allegedly

discriminatory working conditions continued into the counseling period.

Accordingly, the Commission finds that the appellant's counseling request

was timely regarding allegations 1 and 2. The Commission also finds

that the appellant's performance appraisal allegation is inextricably

intertwined with her performance standards allegation. Therefore, the

Commission finds that the appellant timely sought counseling with regard

to allegation 3. The EEO Counselor's Report indicates that the results

of a desk audit on the appellant's position were received on April 14,

1997, finding that the appellant's position was properly graded at the

GS-14 level. Accordingly, the Commission finds that the appellant timely

sought EEO counseling regarding allegation 5.

The record does not establish any dates for the alleged disparate

treatment identified in allegations 4 and 6. However, it appears that

at least one form of the alleged disparate treatment, i.e., the level

at which the appellant was required to report, continued without change

into the 45-day period preceding the appellant's counseling request.

Therefore, the Commission finds that the appellant timely sought

counseling regarding allegations 4 and 6.

In finding allegations 1 through 4 and allegation 6 timely, the Commission

notes that there is no indication in the record that the agency had ever

informed the appellant that it had decided not to officially reassign

her to the HBCU Program Manager position, to provide her with performance

standards, etc.

CONCLUSION

For the reasons stated above, the Commission REVERSES the agency's

dismissal of the appellant's complaint and REMANDS the complaint for

processing as ORDERED below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

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

November 10, 1998

______________

Date Ronnie Blumenthal, Director

Office of Federal Operations