01A15024_r
12-14-2001
Carol E. Gladden, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Carol E. Gladden v. Department of the Treasury
01A15024
December 14, 2001
.
Carol E. Gladden,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A15024
Agency No. 01-2243
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to 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. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On March 27, 2001,<1> complainant contacted the EEO office claiming
that she was discriminated against when she was suspended for three
days in April 2000. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, on May 16, 2001, complainant filed a
formal complaint based on race and sex.
On July 20, 2001, the agency issued a decision dismissing the complaint
for untimely EEO Counselor contact. Specifically, the agency determined
that on January 13, 2000, complainant was issued a proposed letter of
suspension for fourteen days; and that on March 21, 2000, the proposed
suspension was reduced to three days, which complainant served in April
2000. The agency determined that complainant, however, did not contact
the EEO office until nearly a year later, in March 2001. According to
the agency, when complainant was given the opportunity to explain why
her contact was beyond the time limitation, she stated that it was not
until a February 26, 2001 meeting that she suspected discrimination;
however, the agency determined that complainant had also asserted that
she began to research records in April 2000, wherein she found four other
violations similar to her own that were not disciplined. Therefore,
the agency concluded that complainant had a reasonable suspicion in April
2000, but did not contact a Counselor within forty-five days. Finally,
the agency also dismissed the complaint for failure to state a claim.
The agency noted that the fact that coworkers may have engaged in conduct
for which complainant was previously disciplined does not state a claim.
On appeal, complainant explains that once the suspension was effective
she elected to file a grievance because, although she found the
discipline to be severe, she did not believe the action was motivated
by discriminatory animus. Complainant contends that beginning in
March 2000, she was assigned to three separate temporary duties, all
outside her permanent duty station; and that it was not until after
she returned to the permanent duty station in January 2001, during a
meeting on February 26, 2001, that complainant's suspicions were raised.
During the meeting, complainant asserts that the Chief stated that
�several 8-hour notifications have been missed and eventually we will
be held accountable and you may be disciplined in the future if you are
not careful.� This caused complainant to believe that while she had
been disciplined for violating the personal search policy, apparently
other supervisors had not been disciplined.
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.
Complainant contends she was discriminated against when she was suspended
for violating the U.S. Customs Personal Search Policy. The agency
concluded that complainant reasonably suspected discrimination in April
2000, but did not contact an EEO Counselor until March 27, 2001, well
beyond the forty-five day time limit. As noted above, complainant argues
that she did not suspect discrimination until February 26, 2001, when
there was an indication that other supervisors had not been disciplined
for similar policy violations. Moreover, while the agency understood
complainant's explanation to mean that she began conducting research
in April 2000, the record indicates that she performed the research
after the February 26, 2001 meeting and searched documents created
after her April 2000 suspension. Therefore, the Commission finds that
complainant did not reasonably suspect discrimination until February 26,
2001, thereby making her March 2001 contact timely.
The regulation set forth at 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 also dismissed the complaint for failure to state a claim.
While the agency reasoned that the failure to discipline others does not
state a claim, we find that complainant is claiming discrimination for the
suspension she was issued. Learning about the agency's inaction toward
other employees merely raised her suspicions about her own suspension.
Therefore, we find that the April 2000 suspension is sufficient to render
complainant an �aggrieved� employee. Because complainant has alleged that
the adverse action, the suspension, was based on race and sex, she has
raised a claim within the purview of the EEOC regulations. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
Accordingly, the agency's decision to dismiss the complaint was improper
and, and is hereby REVERSED. The complaint is REMANDED to the agency for
further processing in accordance with this 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
December 14, 2001
__________________
Date
1The Commission notes that documents from complainant indicate that
she contacted the EEO Manager on March 6, 2001. However, the disparity
in the two dates, approximately three weeks apart, does not affect our
disposition of this case.