01992442
11-05-1999
Edna M. Dawson, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Office of Dependent Education Activity), Agency.
Edna M. Dawson v. Department of Defense
01992442
November 5, 1999
Edna M. Dawson, )
Appellant, )
)
v. ) Appeal No. 01992442
) Agency No. EU-FY99-04
William S. Cohen, )
Secretary, )
Department of Defense, )
(Office of Dependent )
Education Activity), )
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. The final agency decision was issued on January
26, 1999. The appeal was postmarked February 3, 1999. 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 on appeal is whether the agency properly dismissed portions of
appellant's complaint on the grounds of untimely EEO contact and that
appellant elected to proceed under the agency's negotiated grievance
procedure.
BACKGROUND
Appellant is an elementary school teacher at the agency's Robinson
Barracks Elementary School in Stuttgart, Germany. According to the
EEO Counselor's report, appellant has been attempting to resolve her
situation since 1996. The report states that appellant has not received
appropriate information from the agency with regard to her EEO rights.
The report notes that appellant contacted the Commission in 1997, and
that the Commission referred the matter to the agency. On November 18,
1998, appellant filed a formal EEO complaint wherein she alleged that she
had been subjected to discriminatory harassment on the bases of her race
(black) and color (black) when:
SCHOOL YEAR 1993-94
1. She was pressured to move to teach fourth grade after she prepared her
room for a first grade class. White colleagues were not asked to move.
2. The school principal arranged to have an open house for appellant's
class during which time the principal encouraged parents to verbally
attack her character and teaching methods.
3. Someone with a key to appellant's room broke into it. Government
equipment and personal property in the amount of $1,000 were stolen.
Appellant was summoned by the CID and fingerprinted. Two white teachers
who shared the space with appellant were not subjected to the same
treatment.
SCHOOL YEAR 1994-95
4. Appellant was assigned to a sixth grade classroom that contained
only minority children. The other sixth grade classroom, which was
taught by a white colleague, had predominantly white children.
5. The principal came into appellant's room and said that she had
received complaints from parents about appellant not communicating
with them. Appellant was informed by some parents that the principal
had contacted them about appellant's performance. Appellant alleged
that the complaints were solicited by the principal.
SCHOOL YEAR 1995-96
6. Appellant was accused of being a Black Panther, unfit to work with
children, she was accused of saying that black people are less intelligent
than whites, and she was accused of making black children feel bad.
7. The principal met privately with parents and then set up a meeting
where the parents were so hostile toward appellant that the meeting had
to be terminated.
8. The principal insinuated that appellant was guilty of child abuse
and she conducted a demeaning and humiliating school level investigation.
Despite the fact that the principal could not substantiate the charges,
she continued to harass appellant and appellant was forced to seek legal
counsel at her own expense.
9. Due to the harassment, appellant attempted to meet with the District
Superintendent but the Superintendent refused to talk with her or her
attorney.
SCHOOL YEAR 1996-1997
10. A parent who had spoken to the principal and whom the principal
directed appellant to call used abusive language on the telephone and told
appellant that she was on her way to the school "to take care of you."
11. All parents who complained about appellant initially talked to
the principal. Appellant believes that the principal was behind the
complaints and that several parents confirmed this was the case.
SCHOOL YEAR 1997-98
12. Five days after the new principal arrived, the new principal accused
appellant of making decisions for her pertaining to a substitute teacher.
13. During the North Central Accreditation visit, one member of the team
set up an appointment to see the mentoring program that appellant was
involved in. The team member did not appear and instead she spent the
time chatting with a white second grade teacher. Appellant and a black
colleague felt slighted and hurt.
14. In June 1998, the new principal gave sixteen ratings of "Exceptional"
with monetary awards and four ratings of "Commendable". When appellant
questioned her as to the reason she did not receive an "Exceptional"
rating, the new principal asked her to submit a write-up justifying
the rating. Subsequent to appellant's submission of the write-up,
her rating was changed to "Exceptional". Appellant questioned the new
principal if anyone else had to submit a justification for their rating
and she replied in the negative.
15. On September 10, 1998, during a fire drill, one of appellant's
students was detained by fire drill personnel without her knowledge
while leaving the building. After appellant discovered this, she
hurried back to the building to search for the student but the new
principal informed her that the student was okay. When appellant
questioned the new principal, appellant learned that the student had
been removed pursuant to the principal's orders to check accountability.
Appellant believes that the principal was checking on her.
16. During the school picture day on October 15, 1998, appellant believes
that the new principal rearranged the schedule for another class in
order to cause her considerable inconvenience. According to appellant,
no other teachers had their times changed by the principal.
In its final decision, the agency dismissed the portions of appellant's
complaint that involve incidents that occurred during the 1993-94,
1994-95, and 1995-96 school years on the grounds of untimely EEO contact.
The agency determined that appellant did not attempt to raise her concerns
through the EEO process until October 2, 1996. The agency also dismissed
these allegations on the grounds that appellant elected to raise these
matters through the agency's negotiated grievance procedure. The agency
determined that appellant raised these issues through the negotiated
grievance procedure in a meeting with the principal on February 22, 1996.
The agency accepted for investigation the portions of the complaint
dealing with incidents that allegedly occurred during the 1996-97 and
1997-98 school years.
On appeal, appellant contends that during the period of 1993-1996,
there was no EEO Counselor available to consult with her. According to
appellant, a list of EEO Counselors was finally provided to her on
October 2, 1996, but it was outdated. Appellant maintains that the
matters at issue have never been raised through the negotiated grievance
procedure.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.301(a) provides in relevant part that
when a person is employed by an agency subject to 5 U.S.C. �7121(d) and
is covered by a collective bargaining agreement that permits allegations
of discrimination to be raised in a negotiated grievance procedure, a
person wishing to file a complaint or a grievance on a matter of alleged
employment discrimination must elect to raise the matter under either
part 1614 or the negotiated grievance procedure, but not both.
Upon review of the record, we note that the record does not establish
that appellant filed a grievance under the negotiated grievance
procedure with regard to the matters that were dismissed in the final
agency decision. The record contains an undated memorandum written
by a Faculty Representative Spokesperson. This memorandum indicates
that on February 22, 1996, appellant was given a copy of the negotiated
agreement by the principal and she was told that this contract is the
avenue for addressing any grievance she might have. However, appellant
denied that she filed a grievance with regard to the matters at issue,
and there is no documentation in the record that establishes she filed
such a grievance. Moreover, the record does not contain a copy of the
negotiated agreement. Therefore, even if appellant filed a grievance
concerning the matters at issue, we are unable to determine whether the
negotiated grievance procedure permits allegations of discrimination.
We find that the agency failed to substantiate the bases for its dismissal
on this grounds. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1991). Accordingly, the agency's dismissal
of those portions of appellant's complaint pertaining to incidents
that allegedly occurred during the school years of 1993-94, 1994-95,
and 1995-96, on the grounds that appellant elected to proceed through
the negotiated grievance procedure was improper and is REVERSED.
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.
According to the EEO Counselor's report, appellant has been attempting to
resolve her situation since 1996. The report states that appellant has
not received appropriate information from the agency as to her EEO rights.
Appellant contends that no EEO Counselors were available to consult with
her during the period of 1993-96. It appears that on October 2, 1996,
appellant was provided with an outdated list of EEO Counselors. In its
final decision, the agency determined that appellant first attempted to
raise her concerns through the EEO process on October 2, 1996. We note
that the agency has not refuted appellant's argument on appeal that there
were no EEO Counselors available to consult with her during the period
of 1993-96. Further, although the statement that appellant did not
receive appropriate information from the agency as to her EEO rights is
lacking in specifics, it is apparent that appellant was at a disadvantage
in utilizing the agency's EEO complaint procedures. Consequently,
we find that sufficient justification exists for an extension of the
45-day limitation period for contacting an EEO Counselor. We find
that appellant's contact of an EEO Counselor was timely with regard
to the dismissed allegations. Accordingly, the agency's dismissal
of those portions of appellant's complaint pertaining to incidents
that allegedly occurred during the school years of 1993-94, 1994-95,
and 1995-96, on the grounds of untimely EEO contact was improper and
is REVERSED. These portions of the complaint are hereby REMANDED for
further processing pursuant to 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 (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:
November 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations