01970348
05-18-1999
Norma Stephens, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Norma Stephens v. Department of Health and Human Services
01970348
May 18, 1999
Norma Stephens, )
Appellant, )
)
v. ) Appeal No. 01970348
) Agency No. OSH-583-94
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) 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. Appellant alleges that
she received the FAD on September 14, 1996. There is no evidence to
rebut her allegation. The appeal was postmarked October 14, 1996.
Accordingly, the appeal is timely. See 29 C.F.R. � 1614.402(a).
In her formal complaint, filed April 15, 1994, appellant alleged that she
was discriminated against in retaliation for prior EEO activity when her
supervisor interfered with her ability to seek due process regarding her
1988 performance appraisal by failing to provide her with a copy of the
appraisal until March 11, 1994. The agency issued a FAD dated October 17,
1994, dismissing the allegation on two bases: (1) appellant's failure to
initiate timely EEO contact; and (2) appellant's having raised the matter
in a July 1989 negotiated grievance proceeding regarding her removal
for poor performance prior to the filing of the instant complaint.
On appeal, the Commission reversed the FAD. Specifically, the Commission
found that: (1) appellant's allegation was timely because she was
unaware of her overall "Unsatisfactory" rating on the 1988 performance
appraisal until March 1, 1994; and (2) the instant allegation had
not been raised under the July 1989 negotiated grievance proceeding.
Accordingly, we remanded the allegation and ordered the agency to conduct
an investigation; provide appellant with a copy of the investigative
file; and notify appellant of her appropriate rights. See Stephens
v. Department of Health and Human Services, EEOC Appeal No.01951238
(August 30, 1995).
By letter dated September 19, 1995, the agency informed appellant that
it had received the remanded allegation and that it would notify her
before beginning the investigation. However, upon further review of
the complaint file, the agency determined that appellant, in fact,
had possession of the performance appraisal in 1989 and that (through
her union attorney) she submitted it during the July 1989 arbitration
hearing regarding her removal. As a result, the agency issued a second
FAD finding that appellant's EEO contact was untimely because she knew
or should have known of the content of her 1988 performance appraisal
when she presented it at the July 1989 arbitration hearing. The agency
noted that even if appellant viewed her removal as somehow preventing
her from seeking EEO counseling, she could have sought counseling upon
her return to work in 1990 rather than waiting until March 11, 1994.
It is from this FAD which appellant now appeals.
EEOC Regulation 29 C.F.R. � 1613.214(a)(1)(i) required that complaints
of discrimination be brought to the attention of the EEO Counselor
within thirty (30) calendar days of an alleged discriminatory event, the
effective date of an alleged discriminatory personnel action, or the date
that the aggrieved person knew or reasonably should have known of the
discriminatory event or personnel action. EEOC Regulation 29 C.F.R. �
1614.105(a)(1) extended the time limit for contacting an EEO Counselor
to forty-five (45) days for actions occurring on or after October 1,
1992, the effective date of the new regulations. The Commission adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the applicable limitation period is triggered.
See Ball v. United States Postal Service, EEOC Request No. 05880247
(July 6, 1988).
After a thorough review of the record, we agree with the agency. The
evidence establishes that the exhibit is appellant's 1988 performance
appraisal; that the agency produced it in response to appellant's
discovery request prior to the July 1989 arbitration hearing; and that
appellant offered it into evidence during the July 1989 arbitration
hearing. We therefore find that appellant suspected or should have
suspected the discriminatory nature of her "Unsatisfactory" rating at
the very latest by July 1989. Accordingly, appellant's March 11, 1994
EEO contact was untimely, and we AFFIRM the FAD.<1>
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 (S0993)
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:
May 18, 1999 __________________________________
DATE Carlton M. Hadden, Acting Director
Office of
1 The Commission notes appellant's assertion that the agency failed to
comply with the Commission's orders by not conducting an investigation
into the merits of appellant's claim. However, we find that based upon
the agency's dismissal pursuant to 29 C.F.R. � 1614.107(b), a formal
investigation was not required.