Marian M. Battle, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 3, 2004
01a35154 (E.E.O.C. Jun. 3, 2004)

01a35154

06-03-2004

Marian M. Battle, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Marian M. Battle v. Department of the Army

01A35154

6/3/2004

.

Marian M. Battle,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A35154

Agency No. ARCEMEM03MAR0059

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated August 1, 2003, dismissing 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.

In her formal complaint dated April 2, 2003, complainant alleged that

she was subjected to discrimination in reprisal for prior EEO activity.

In its final decision dated August 1, 2003, the agency determined that

complainant's complaint was comprised of the following claim:

[Complainant] initially filed [an] EEO complaint on [January 21, 2003],

alleging that [her] last performance appraisal was adversely affected

because of a previous EEO complaint filed with the agency. [Complainant]

also stated in [her] complaint that this claim was to be investigated, but

[complainant] did not receive counseling on this subject. The previous

complaint was amended by the investigator criteria and was part of

the previous complaint for which [complainant] received counseling.

However, [complainant] withdrew [her] statement on [February 5, 2003],

stating that it was not [her] performance appraisal, but the fact that

[complainant] did not receive a monetary performance award, after

receiving an overall rating of one (1) excellent on [her] performance

appraisal.

The agency dismissed complainant's complaint for untimely EEO Counselor

contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the agency

stated that �[t]he date of the alleged event was [December 4, 2002],

but [complainant] did not contact an EEO Counselor until [January 21,

2003], making the 45th calendar date [January 18, 2003].�

On appeal, complainant, through her representative, states that her

complaint was improperly dismissed. Complainant asserts that the

instant complaint �was included in [an] investigation but during the

investigation, the Investigator stated that [her] complaint was worded

wrong...and that [she] had to take the complaint back through the EEO

process.� Furthermore, complainant asserts that �if [the pre-complaint]

had been counseled in the first place, the issue of wording would

have been cleared up.� In addition, complainant's representative, on

appeal, states that she is being subjected to harassment based upon her

representing various agency employees in EEO matters.

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.

The Commission finds that the agency improperly dismissed complainant's

complaint. The record contains a pre-complaint form signed by complainant

on January 21, 2003. Therein, complainant states, �I believe that my

last performance appraisal was adversely affected because of my filing

an EEO complaint with the [a]gency.� Complainant's pre-complaint

form also contains a handwritten notation signed by complainant and dated

February 5, 2003. Therein, complainant stated that she is withdrawing the

statement in her pre-complaint. The record also contains a memorandum

from complainant dated February 6, 2003. Therein, complainant states

that she is amending her informal complaint dated January 21, 2003.

Specifically, complainant states, �I want to re-enter an amendment

stating: [t]hat I want to file on the non-receipt of a Performance Award

based on the rating I received.� Furthermore, in her formal complaint,

complainant stated that the investigator told her that her complaint

was worded incorrectly and that it should be amended.

The record also contains a copy of an EEO Counselor's Report dated April

3, 2003. Therein, the EEO Counselor provides, �[complainant] originally

filed a [pre-complaint] on January 21, 2003, alleging that her performance

appraisal was adversely affected because she had filed a previous EEO

complaint with the agency. However, she withdrew her statement on

[February 5, 2003], stating that it was not her performance appraisal,

but the fact that she did not receive a monetary performance award.�

Based on these circumstances, the Commission finds that complainant

initiated EEO Counselor contact on January 21, 2003. The January 21,

2003 pre-complaint form lists the alleged incident date as December 4,

2002; however, the EEO Counselor's Report and the formal complaint

list the alleged incident date as December 18, 2002. The Commission finds

that because complainant initiated EEO Counselor contact on January 21,

2003, both these incident dates (December 4, 2002, and December 18, 2002)

are timely. EEOC Regulation 29 C.F.R. � 1614.604(d) provides that the

first day counted shall be the day after the event from which the time

period begins to run and the last day of the period shall be included,

unless it falls on a Saturday, Sunday, or Federal holiday in which the

period shall be extended to include the next business day. Because the

45th day after the alleged incident date of December 4, 2002, was a

Saturday and because Monday, January 20, 2003, was a Federal holiday,

we find that complaint's initial EEO Counselor contact on Tuesday,

January 21, 2003, was timely.

Accordingly, the agency's decision dismissing complainant's complaint

is REVERSED. This complaint is REMANDED for further processing in

accordance with the ORDER below and applicable regulations.

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

6/3/2004

Date