0120065211
03-15-2007
Regina K. Young, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Regina K. Young,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200652111
Agency No. ARHQAMC04FEB0056
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision dated November 17, 2004 that dismissed her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUES PRESENTED
(1). Whether complainant's appeal was filed in an untimely manner.
(2). Whether the agency properly dismissed complainant's complaint
on the grounds that: (a) she contacted an EEO counselor in an untimely
manner; (b) she failed to state a claim; and (c) her allegations
represented a collateral attack on the agency's privatization procedures.
BACKGROUND
Prior to July 1, 2000, complainant was employed by the agency's Logistics
Systems Support Center (LSSC), located in St. Louis, Missouri. The LSSC
was a component of the agency's Communications Electronics Command
(CECOM). In 1999, CECOM began the process of outsourcing the work
performed by the LSSC to a private contractor, the Computer Science
Corporation (CSC). Because of the decision to privatize, complainant
and her co-workers were notified that a reduction-in-force (RIF) would
be implemented. In order to minimize the impact of the RIF, the agency
devised what became known as the "Soft Landing" program to assist affected
employees. As part of the program, employees who were involuntarily
separated under the RIF procedures were entitled, among other things,
to a guaranteed job offer from the CSC with pay and benefits that were
comparable to the Federal government. Management conducted a survey of
the workforce, asking employees to identify whether they would prefer to:
(a) remain with the Federal Government, either in the Retained Government
Organization (RGO) with the CSC or to transfer to another Federal agency,
(b) volunteer for the RIF and take a position with the CSC, or (c) retire.
The record indicates that complainant accepted another position with
the agency. On July 1, 2000, the LSSC ceased operation.
On May 24, 1999, Conrad Lohutko, an employee, contacted the EEO
office. Subsequently, he filed a class complaint against the agency on
behalf of himself and his co-workers that alleged, among other things,
discrimination based on age with respect to the abolishment of their jobs.
In support of the class complaint, 80 statements were submitted by the
purported class members. The record indicates that complainant submitted
such a statement. On November 13, 2001, an EEOC Administrative Judge
(AJ) issued a decision rejecting the class complaint for certification.
The AJ found that the requirement of adequacy of representation had not
been satisfied. On appeal, in Lohutko v. Department of the Army, EEOC
Appeal No. 01A22022 (November 14, 2003), the Commission affirmed the AJ's
decision. In EEOC Request No. 05A40278 (December 30, 2003), Mr. Lohutko's
request to have the initial decision reconsidered was denied.
On January 27, 2004, an EEO official from CENCOM informed the affected
employees, by memorandum, that EEO representatives would come to the
LSSC to discuss their "rights and responsibilities and how to proceed"
if there was a desire to proceed with individual complaints. At the
meeting, which was held on February 10, 2004, EEO representatives held
a briefing for many of the employees and collected numerous informal
individual complaints.
In May 2004, complainant and her co-workers filed individual formal
complaints against the agency. For the most part, they all alleged that
they were discriminated against based on age when management made a
decision to abolish the positions of its older workers and to replace
them with younger employees. On November 17, 2004, the agency issued a
final order that dismissed the complaints on the grounds that: (1) the
employees sought EEO counseling in an untimely manner; (2) the employees'
allegations failed to state a claim; and (3) the employees were attempting
to collaterally attack the process by which the LSSC was privatized.
Although the agency did not address the merits of the employees'
discrimination complaints, the agency gave them appeal rights to the Merit
Systems Protection Board (MSPB), not the Commission. Unlike complainant,
however, fifty of her co-workers simultaneously filed appeals with
both the Commission and the MSPB.2 Complainant only filed an appeal
with the MSPB. In May 2005, the MSPB issued a decision finding that it
did not have jurisdiction over the subject matter raised in the appeals.
The decision became final on June 6, 2005. On March 30, 2006, complainant
filed an appeal with the Commission regarding the agency's November 17,
2004 final decision.
On appeal, complainant argued, in pertinent part, that the agency erred
by giving her appeal rights to the MSPB, not the Commission. The agency
did not respond to complainant's appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.604(c) provides that time limits
are subject to waiver, estoppel and equitable tolling. Complainant
was never informed about the procedures for filing an appeal with
the Commission. The agency's November 2004 decision indicated that
complainant could petition the Commission to review the MSPB's decision
on the discrimination issue; however, as noted above, the MSPB did
not issue a decision on the discrimination claim. There was also no
information provided about when such a petition had to be filed. We find
it reasonable that complainant would have been unsure of her options
in this situation.3 According to complainant, on August 22, 2006, she
became aware of our decision in Kalinich that the agency erred when it
provided appeal rights to the MSPB. After a careful review of the record
and in consideration of the specific circumstances surrounding this case,
we find that the time period for filing an appeal should be waived.4
Untimely EEO counselor contact
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,
that the agency shall dismiss a complaint or a portion of a complaint that
fails to comply with the applicable time limits contained in � 1614.105.
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.
The agency argued that complainant failed to contact an EEO counselor
within 45 days of the alleged discriminatory events; therefore, her
complaint was dismissed on the grounds of untimely counselor contact.
The Commission has long held that the "Commencement of a class action
. . . suspends applicable time limits to all asserted members of the
class who would have been parties if the class had been certified,"
and that once there has been a "final administrative ruling on the class
certification issue," the time limits for filing individual actions by
rejected class members resumes. See Mole v. Department of the Air Force,
EEOC Request No. 05910578 (September 25, 1991).
We find that complainant meets the definition of being an "asserted"
member of the class who would have been a party had the class complaint
been certified. In reaching this conclusion, we note the following
salient facts: Conrad Lohutko filed a class complaint against the agency
on behalf of himself and his co-workers at the LSSC. The record is
undisputed that complainant, her co-workers and agency officials assumed
that the class complaint was the means by which the concerns of all the
workers would be addressed. In this regard, we note the January 27, 2004
memorandum from the CENCOM EEO official. As stated above, the memorandum
informed complainant and her co-workers that certification of the class
complaint had been denied. The memorandum also went on to state that:
Because your EEO class action complaint and request for an EEO counselor
was subsumed in the subject complaint, you, like the class representative,
may also proceed with the same issues and basis that you identified in
your original complaint and request.
Although the agency subsequently rescinded this memorandum, we find that
it demonstrates that it was common knowledge that complainant and her
co-workers had "asserted" their intent to be members of the class had it
been certified. Accordingly, we find that this case falls squarely within
the parameters our Kalinich decision. The time limit for complainant
to contact an EEO counselor was suspended by the filing of the class
complaint. As in Kalinich, we find that the 45-day time limitation
period for contacting an EEO counselor was triggered, on December 31,
2003, the day after EEOC Request No. 05A40278 was issued. Accordingly,
any EEO counselor contact that occurred on or before Friday, February
13, 2004, the 45th day, was timely. The agency, in its EEO counselor's
reports and pre-complaint intake documents, acknowledged that the date
complainant requested EEO counseling was February 10, 2004. Accordingly,
we find that complainant contacted an EEO counselor in a timely manner.
Failure to State a Claim
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim.
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The agency maintained that complainant was not aggrieved because she did
not suffer a harm to a term, condition or privilege of her employment.
The agency argued that during the privatization process, complainant
was given many options with regard to her future employment, and that
she accepted employment with another agency. According to the agency,
the fact that complainant may be displeased with the option that she
selected does not make her aggrieved.
The question as to whether an employee is aggrieved requires a
consideration of whether the employee alleged unlawful discrimination
regarding hiring, termination, compensation, or other terms, conditions,
or privileges of employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Terms, conditions,
or privileges of employment include, among other things, promotion,
demotion, discipline, reasonable accommodation, appraisals, awards,
training, benefits, assignments, overtime, leave, tours of duty, etc.
Id. A complaint which alleges unlawful disparate treatment regarding
a specific term, condition, or privilege of employment should not
be dismissed for failure to state a claim. Id. Among other things,
complainant alleged that the agency, by abolishing her position, forced
her for discriminatory reasons to accept another position. Therefore,
she states a claim.
Collateral Attack
According to the agency, complainant's complaint should also be dismissed
on the grounds that she is collaterally attacking the process by which
the LCSS was privatized. The agency argued that, "the A-76 Supplemental
handbook establishes guidelines for administrative appeals of the
waiver decisions. Four extensive appeals were submitted and were given
full and fair consideration by the Secretary of the Army." We disagree
with the agency's position. There is no indication from the record that
complainant had the opportunity or the ability to raise allegations of
discrimination as part of the aforementioned process. We view this as
being analogous to an agency having a negotiated grievance procedure
that does not allow an employee to raise allegations of discrimination.
In such situations, the Commission would allow the employee to file an
EEO complaint even though the matter may have already been addressed in
a prior grievance decision.
CONCLUSION
Accordingly, the agency's final order that dismissed complainant's
complaint is REVERSED. The complaint is remanded for further processing
in accordance with the decision and the Order below.
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
March 15, 2007
__________________
Date
1 Due to a new data system, the case has been re-designated with the
above referenced appeal number.
2 In Kalinich et al v. Department of the Army, EEOC No. 01A51825
(August 25, 2005), the Commission reversed the agency's dismissal
of forty-three of the complaints filed by complainant's co-workers.
The Commission also found that the agency erred by giving complainant's
co-workers appeal rights to the MSPB.
3 Although not entirely applicable in this case, we note that 29 C.F.R. �
1614.302(b) provides that if a person files a timely appeal with MSPB from
the agency's processing of a mixed case complaint and the MSPB dismisses
it for jurisdictional reasons, the agency shall reissue a notice under 29
C.F.R. � 1614.108(f) giving the individual the right to elect between a
hearing before an administrative judge and an immediate final decision.
Therefore, even if we found that the agency was correct when it provided
complainant appeal rights to the MSPB, it should have contacted her after
the MSPB declined jurisdiction and provided her with options. As noted,
however, 29 C.F.R. � 1614.302(b) is not entirely applicable in this case
because the agency dismissed complainant's complaint and did not address
her allegations of discrimination; therefore, the election between
a hearing and a final decision would not apply. For these reasons,
complainant should have been given appeal rights to this Commission,
not the MSPB.
4 We note that the Commission considered whether laches should apply. The
doctrine of laches is an equitable remedy under which an individual's
failure to diligently pursue their legal remedies can bar their claims.
See O'Dell v. Department of Health and Human Serv., EEOC Request
No. 05901130 (December 27, 1990). We determined that this complainant
did not fail to diligently pursue her rights particularly since the
most recent decision regarding these same facts was a couple of months
prior to complainant's appeal. See Gilbert v. Department of the Army,
EEOC Appeal No. 01A62883 (June 8, 2006).
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0120065039
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065211