01a44923
10-29-2004
Dorothy W. Johnson, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Dorothy W. Johnson v. U.S. Department of Agriculture
01A44923
October 29, 2004
.
Dorothy W. Johnson,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A44923
Agency No. 040406
DECISION
On March 11, 2004, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
In her formal complaint, filed on April 27, 2004, complainant claimed
that she was subjected to unlawful employment discrimination on the
bases of race (African-American) and age (D.O.B. 9/30/49).
On June 9, 2004, the agency issued a final decision. The agency
determined that the instant complaint was comprised of three claims,
identified in the following fashion:
In July 2000, complainant was not selected for any of three Supervisory
Computer Specialist positions advertised under vacancy announcement
#NFC-00-098;
In August 2001, she was not selected for any of three Supervisory
Computer Specialist positions advertised under vacancy announcement
#NFC-01-094; and
In February 2003, her position was incorrectly classified and as a result
there were irregularities regarding a desk audit of her position.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact.
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.
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.
Claim 3
Regarding claim 3, complainant asserts that the incident described
therein, occurred on February 12 2004, and not in 2003 as indicated by
the agency in its FAD. Complainant claims that her written statement
regarding her complaint contains a typographical error. Complainant
states that a desk audit of her position was performed in June 2003,
but she did not receive the results of the audit, which she alleges
incorrectly classified her position, until February 2004. The report of
the EEO Counselor also lists February 2004 as the date that complainant
learned that her position had been classified at the GS-11 level.
Upon review, we are persuaded by the evidence of record that claim 3,
as alleged by complainant occurred in February 2004. In that regard,
we find that the agency's decision dismissing claim 3 as untimely is
improper and is REVERSED. Claim 3 is REMANDED to the agency for further
processing in accordance with the ORDER below
Claims 1 and 2
The record discloses that the alleged discriminatory events described
in claims 1 and 2 occurred in July 2000, and August 2001, respectively.
The record further indicates that complainant did not initiate contact
with an EEO Counselor until March 11, 2004, which is beyond the forty-five
(45) day limitation period.
On appeal, complainant asserts that she only developed a reasonable
suspicion of unlawful employment discrimination regarding the matters
identified in claims 1 and 2 on February 12, 2004, when she received
the results of the desk audit. Complainant further elaborates that
the agency misrepresentation of her duties and responsibilities during
the desk audit; failure to identify specific duties she had performed
from 2000 through June 2003 (when the desk audit was performed); and the
�re-engineering� of her position after the desk audit, caused her to first
develop a reasonable suspicion of unlawful employment discrimination.
The Commission finds, however, that complainant has not persuasively
identified the event that purportedly occurred on February 12, 2004, that
would trigger a reasonable suspicion of unlawful employment discrimination
regarding her nonselection for other positions approximately three years
earlier. Accordingly, the Commission finds that complainant failed
to present persuasive arguments or evidence to warrant an extension
of the applicable time limit for initiating EEO contact. The agency's
decision dismissing claims 1 and 2 for untimely EEO contact was proper
and is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claim (claim 3) in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claim 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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
October 29, 2004
__________________
Date