01982277_r
06-15-1999
Barbara B. Hopkinson, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Barbara B. Hopkinson, )
Appellant, )
)
v. ) Appeal No. 01982277
) Agency No. I-96-8075
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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., and the Age Discrimination in Employment
Act of 1967, 29 U.S.C. �621 et seq. The final agency decision was
issued on January 9, 1998. The appeal was postmarked January 26, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
allegation (1) on the grounds of failure to contact an EEO Counselor in
a timely manner and allegations (2) and (3) for failure to cooperate.
BACKGROUND
Appellant initiated contact with an EEO Counselor on August 5, 1996.
On October 17, 1996, appellant filed a formal EEO complaint wherein she
alleged that she had been discriminated against on the bases of her race
(unspecified), religion (unspecified), age (unspecified), and in reprisal
for her previous EEO activity when:
1. On October 10, 1996, she became aware that similarly situated
Immigration Inspectors were hired at the GS-7 level while she was hired
at the GS-5 level.
2. She was not selected for the position of District Adjudication
Officer advertised under Vacancy Announcement number MIA 95-30.
3. She was not selected for the position of Immigration Inspector,
GS-5/7, advertised under Vacancy Announcement number CR NOC 95-091.
The record reveals that the agency sent appellant a letter seeking a
clarification of the complaint. Specifically, the agency requested
that appellant describe the alleged discriminatory act(s) that she was
subjected to on October 10, 1996; an explanation of how she believes she
was discriminated against with the dates of occurrence, the titles and
vacancy announcement numbers of the positions for which she applied,
but was not selected; the dates she applied for the positions; the
locations of the positions; the name of the selecting officials, the
dates she was informed of her nonselection for the positions; and the
corrective action sought.
By letter dated June 3, 1997, appellant responded that she became aware of
the alleged discrimination after she had several conversations with a few
coworkers on October 10, 1996, concerning their grade levels and how they
were hired. Appellant stated that she was surprised to learn that these
coworkers were hired at the GS-7 grade level even though they lacked a
background in immigration and were not outstanding scholars. Appellant
stated that in September/October 1994, she was told that she would not
be considered for a GS-7 position because she had not completed the
academy and she was not an outstanding scholar. According to appellant,
when she became an Immigration Inspector, she requested the GS-7 level,
but she was hired as a GS-5, while others were hired at the GS-7 level.
With regard to the District Adjudication Officer position, appellant
indicated that approximately fifteen positions were available at the
GS-5 and GS-7 levels.
In its final decision, the agency dismissed appellant's complaint on
the grounds that appellant failed to contact an EEO Counselor in a
timely manner and that she failed to cooperate. The agency determined
that appellant's EEO contact of August 5, 1996, was untimely given
that appellant's response dated June 3, 1997, indicated that she
initially raised concerns about the GS-7 qualification requirements in
September/October 1994. According to the agency, appellant also indicated
that in October 1995, when she was selected for an Immigration Inspector
position at the GS-5 level, she questioned the reason for others being
selected at the GS-7 level. The agency concluded that appellant had a
reasonable suspicion of discrimination and that she failed to exercise
due diligence. With regard to its dismissal on the grounds of failure
to cooperate, the agency determined that appellant's response did
not provide the dates on which she applied for the positions, nor the
dates on which she became aware of her nonselection for the positions.
The agency noted that appellant also stated that she would withhold the
names of the similarly situated employees.
On appeal, appellant maintains that her complaint was filed in a timely
manner, and that she cooperated in every situation. Appellant claims
that her suspicion of reprisal became clear on or about August 4, 1996.
As for the dismissal on the grounds of failure to cooperate, appellant
states that she described the alleged discrimination in her response
of June 3, 1997. Appellant also stated that the dates of the alleged
discrimination and the corrective relief sought were provided in both the
EEO Counselor's report and her response of June 3, 1997. With regard to
the position titles, vacancy announcements, the dates she applied for
the positions, the location of the positions, the name of the selecting
official, and the dates that she was informed of her nonselections,
appellant states that the agency has all of this information in its
records and other sources. Appellant notes that she was never notified
of her nonselections.
ANALYSIS AND FINDINGS
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation
period was triggered. See Ball v. USPS, EEOC Request No. 05880247
(July 6, 1988). Thus, the limitation period was not triggered until a
complainant should have reasonably suspected discrimination, but before
all the facts that would have supported a charge of discrimination had
become apparent.
Appellant initiated contact with an EEO Counselor on August 5, 1996,
after the expiration of the 45-day limitation period. Appellant stated
that she did not learn until on or about August 4, 1996, that other
Immigration Inspectors had been hired at the GS-7 level even though they
lacked a background in the immigration field and were not outstanding
scholars. We find, however, that prior to obtaining this information,
appellant demonstrated that she had a reasonable suspicion of the alleged
discrimination. We note that in October 1995, appellant questioned the
reason for others being selected at the GS-7 level while she was chosen
for an Immigration Inspector position at the GS-5 level. Accordingly,
the agency's dismissal of allegation 1 on the grounds of untimely EEO
contact was proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(g) provides that the agency shall
dismiss a complaint or a portion of a complaint where the agency has
provided the complainant with a written request to provide relevant
information or otherwise proceed with the complaint, and the complainant
has failed to respond to the request within 15 days of its receipt
or the complainant's response does not address the agency's request,
provided that the request included a notice of the proposed dismissal.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission notes that an agency's decision to invoke the provisions
of 29 C.F.R. �1614.107(g) should be made by the agency only when there
is a clear record of delay or contumacious conduct by the complainant.
Connolly v. Papachristid Shipping Ltd., et al., 504 F.2d 917 (5th
Cir. 1974). This is because implicit in the scheme of attempted control
of the evil of discrimination by administrative and judicial machinery
is a degree of cooperation by the complaining party. Jordan v. United
States, 522 F.2d 1128 (8th Cir. 1975). Accordingly, the obligation
to informally and expeditiously resolve complaints is imposed on both
parties.
Further, the Commission has held that, as a general rule, an agency should
not cancel a complaint when it has sufficient information on which to
base an adjudication. See George Ross v. United States Postal Service,
EEOC Request No. 0590693 (August 17, 1990); Pamela A. Brinson v. United
States Postal Service, EEOC Request No. 05900193 (April 12, 1990). It is
only in cases where the complainant has engaged in delay or contumacious
conduct and the record is insufficient to permit adjudication that
the Commission has allowed a complaint to be canceled for failure to
prosecute (cooperate). See Arturoc Raz v. United States Postal Service,
EEOC Request No. 05890177 (June 14, 1989).
Based on the record herein, we find that the agency improperly dismissed
allegations (2) and (3) for failure to cooperate. While the agency
contends that appellant did not provide much of the requested information,
the record appears to contain sufficient information to proceed with the
complaint. Upon review of the record, we observe that the EEO Counselor's
report contains information applicable to almost all of the relevant
questions posed to appellant for response. The EEO Counselor's report
identifies the alleged discriminatory events, the titles and vacancy
announcement numbers of the positions, the location of the positions,
and the identity of the responsible officials, and the requested remedy.
While the record lacks the dates on which the vacancy announcements were
issued and the dates on which appellant became aware of her nonselection
for the positions, this information should be readily available to the
agency through its own records, i.e., personnel records as to when the
vacancy announcements were posted, when the selectees were notified, if
the selections were posted, etc. Accordingly, the agency's decision to
dismiss allegations (2) and (3) of appellant's complaint on the grounds
of failure to cooperate was improper and is REVERSED. Allegations (2)
and (3) are hereby REMANDED for further processing in accordance with
the ORDER 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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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. If you
file a request to reconsider and also file a civil action, 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:
June 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations