05970895
09-30-1999
Ann P. Lindsey, Appellant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Ann P. Lindsey v. Small Business Administration
05970895
September 30, 1999
Ann P. Lindsey, )
Appellant, )
) Request No. 05970895
v. ) Appeal No. 01966895
) Agency No. 05-96-548
Aida Alvarez, )
Administrator, )
Small Business Administration, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On July 3, 1997, Ann P. Lindsey (appellant) initiated a request to the
Equal Employment Opportunity Commission (the Commission) to reconsider the
decision in Ann P. Lindsey v. Philip Lader, Administrator, Small Business
Administration, EEOC Appeal No. 01966895 (June 3, 1997). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law
or regulation, or material fact, or a misapplication of established
policy, 29 C.F.R. �1614.407(c)(2); and the decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
affirmed the agency's dismissal of portions of appellant's complaint
for failure to timely contact an EEO Counselor.
BACKGROUND
Appellant contacted an EEO Counselor on January 16, 1996, alleging
discrimination based on sex (female), and age (DOB 3-19-44) when,
following a March 27, 1995, agency announcement that it would transfer
appellant's office from headquarters in Washington, D.C. to Denver,
Colorado, the agency made no effort between March 27, 1995 and February 9,
1996, to place appellant in a vacant position at headquarters; appellant
was notified on September 6, 1995, of a proposal to laterally transfer
her to Denver; and she was involuntarily terminated for failure to accept
transfer on February 9, 1996.
The agency accepted the third allegation for investigation and dismissed
the first and second on the grounds of failure to contact an EEO counselor
in a timely manner. The agency analyzed the allegations as a continuing
violation, and found that allegations (1) and (2) were discrete, isolated
acts which should have triggered a reasonable suspicion of discrimination
at the time each occurred.
On appeal appellant stated that she contacted the EEO office for names
of counselors soon after some of her colleagues were placed. Appellant
did not remember the date. She stated that at the end of the summer
of 1995, she and others were still waiting for placements to be made.
The Commission affirmed the agency's dismissal.
In her request for reconsideration, appellant states that the EEO
officer who gave her names of EEO Counselors in August 1995, failed to
inform her of the contact time requirements for filing EEO complaints.
Appellant also argues that her agency did not post EEO notices and that
the agency failed to provide her with a copy of the Counselor's Report.
The record contains an October 3, 1995, memorandum from an EEO Counselor
to an agency official stating that appellant contacted her<1> claiming
that, based on her performance evaluation rating, she was denied training
and selected to move to Denver. The Counselor notes she advised appellant
that performance is not a basis for discrimination under Title VII. The
Counselor states that because appellant did not allege discrimination as
the reason for her denial of training and selection for transfer, she did
not provide appellant with an aggrieved party's forms for signature.
Appellant contacted the Deputy Administrator (AD) by letter dated November
14, 1995, claiming discrimination. Appellant received a reply December
23, 1995, stating that she must contact an EEO Counselor within 45 days of
an alleged discriminatory event. Appellant argues that after receiving
the reply she was delayed in contacting a Counselor due to the holidays,
snow storms that closed the government, and the government furlough in
early January 1996.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of an EEO 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 day limitation period
is triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988).
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.
It is well settled that EEO contact is timely under the above law
where there is intent to initiate the EEO process through the contact.
Snyder v. Department of Defense, EEOC Request No. 05901061 (November 1,
1990).
It is undisputed that appellant contacted an EEO representative sometime
in the late summer or early fall of 1995. Whether appellant intended
to initiate the EEO process via that contact must be evaluated based on
her actions during the period in question.
A review of the facts indicates that appellant's intent was to initiate
the EEO process. Appellant hoped that she would be placed at headquarters
and contacted the EEO office requesting names of EEO counselors as
more and more of her colleagues were placed. Appellant appears to have
hoped for a resolution without filing a complaint while simultaneously
investigating her EEO rights with the intent to file should she not
be placed. Accordingly, the Commission finds that the agency improperly
dismissed appellant's allegations.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant
meets the criterion of 29 C.F.R. �1614.407(c)(2) and it is the decision
of the Commission to grant appellant's request. The previous decision in
EEOC Appeal No. 01966895 (June 3, 1997) and the agency's final decision
are REVERSED. There is no further right of administrative appeal from
a decision of the Commission on a request for reconsideration.
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.
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:
Sept. 30, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 The memorandum does not specify the date that appellant contacted the EEO
office.