05990737
11-04-1999
Debra L. Rippey, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Debra L. Rippey v. Department of the Navy
05990737
November 4, 1999
Debra L. Rippey, )
Appellant, )
)
v. ) Request No. 05990737
) Appeal No. 01983065
John H. Dalton, ) Agency No. 98-62980-001
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On May 24, 1999, the Department of the Navy initiated a request to
the Equal Employment Opportunity Commission (EEOC) to reconsider the
decision in Rippey v. Department of the Navy, EEOC Appeal No. 01983065
(April 27, 1999). 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, regulation or material fact, or misapplication of established
policy, 29 C.F.R. � 1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. � 1614.407(c)(3). For the reasons set forth herein, it is the
decision of the Commission to grant the agency's request.
ISSUE PRESENTED
The issue presented is whether the previous decision properly reversed
the agency's dismissal of one of the allegations in appellant's complaint
for untimely contact with an EEO Counselor.
BACKGROUND
Appellant contacted an EEO Counselor on October 24, 1997, and filed
her formal complaint on December 5, 1997, alleging discrimination on
various bases. In Allegation No. 1 of her complaint, appellant alleged
that because of her race (white), she was not selected for a Supervisory
Budget Analyst position, GS-560-14, on March 27, 1997. On February 13,
1998, the agency dismissed Allegation No. 1 for untimely contact with
the EEO Counselor.<1> The agency concluded that appellant became aware
of the allegedly discriminatory non-selection on April 1, 1997, but
failed to contact an EEO Counselor until October 24, 1997. Because EEOC
regulations require aggrieved individuals to initiate contact within
forty-five days of the matter alleged to be discriminatory, the agency
dismissed Allegation No. 1. See 29 C.F.R. � 1614.105(a)(1).
The previous decision reversed the dismissal of Allegation No. 1, based on
appellant's statement that she did not reasonably suspect discrimination
until September 10, 1997 when her supervisor told her that he lacked
confidence in the GS-14 selectee (S1: Black). Appellant also stated
that her suspicions of discrimination were confirmed on September 23,
1997 when her supervisor asked her to help S1 develop into the position
and made other remarks indicating that S1 was having trouble fulfilling
her duties. The previous decision found that appellant was not reasonably
suspicious of discrimination until September 1997 and that her October
24, 1997 contact was therefore timely.
In its request, the agency makes a number of arguments. First, the agency
argues that the previous decision failed to follow Commission precedent
holding that the selectee's post-selection performance does not assist
the Commission in determining whether the selection was discriminatory.
Second, the agency argues that the previous decision misapplied the case
law regarding when a "reasonable suspicion" of discrimination arises.
Third, the agency argues that it has new evidence to establish that
appellant was suspicious of discrimination long before September 1997.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. � 1614.407(c). Having reviewed the record, we find that the
agency has submitted new and material evidence which was not readily
available when the previous decision was issued and that the agency's
request thereby meets the criteria of 29 C.F.R. � 1614.407(c). Upon
reconsideration, we find that the agency properly dismissed Allegation
No. 1 for untimely EEO contact.
The new and material evidence provided by the agency is a document
created during a civil case brought by appellant against the agency.
It contains appellant's responses to the agency's interrogatories,
executed on November 14, 1998, six months after the closing of the record
in the previous appeal. The agency provided a copy of appellant's
responses. In answer to interrogatory #6, asking that she describe
the statements that various witnesses would make, appellant indicated
that several individuals were part of "almost daily office discussions
(Jun 97 through Sep 97) of [S1's] inability to perform her duties,
demonstrate any ability to lead, set office priorities, or meet critical
Budget Office deadlines."
The agency noted that appellant's argument for timely contact revolved
around the claim that she only became suspicious of discrimination
when she discovered from her supervisor that S1 was having trouble
in her new position. The answer given in response to the agency's
interrogatory in the civil case indicates that appellant was aware
of daily office discussions concerning S1's work troubles as early as
June 1997. Based on this new evidence, we find that appellant should
have suspected discrimination in June 1997. Because appellant did
not initiate contact with an EEO Counselor until October 24, 1997,
she failed to comply with the applicable forty-five day time limit.
See 29 C.F.R. � 1614.105(a)(1).
Appellant's original appeal brief argued that, failing all else, her
EEO contact was not untimely due to the theory of continuing violation.
The Commission has held that the time requirements for initiating EEO
counseling can be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999); McGivern v. U.S. Postal
Service, EEOC Request No. 05901150 (December 28, 1990). It is well
settled that the denial of a promotion is an incident with a degree of
permanence which should trigger an employee's duty to assert her rights.
See Anvari v. Department of Health and Human Services, EEOC Request
No. 05930157 (June 17, 1993); Jackson v. United States Air Force, EEOC
Request No. 05950780 (June 27, 1997). Therefore, the theory of continuing
violation does not apply to appellant's March 1997 non-selection and
the forty-five day time requirement for initiating EEO counseling cannot
be waived.
Because we have granted the agency's request for reconsideration and
reversed the previous decision as to Allegation No. 1 based on the new
and material evidence provided, we will not address the other arguments
raised by the agency in its request.
CONCLUSION
After a review of the agency's request for reconsideration, the
previous decision, and the entire record, the Commission grants the
request for reconsideration. The decision of the Commission in Appeal
No. 01983065 (April 27, 1999) in regard to Allegation No. 1 is reversed,
and the agency's dismissal of Allegation No. 1 for untimely EEO contact
is affirmed. There is no further right of administrative appeal on a
decision of the Commission on a Request for Reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil 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. 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.
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:
11/4/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The agency also dismissed five other allegations and accepted one.
The previous decision reversed and remanded all of the dismissed
allegations. The agency only requested reconsideration of the reversal
of Allegation No. 1.