Elaine L. Barrios, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 1, 2003
01a34748 (E.E.O.C. Dec. 1, 2003)

01a34748

12-01-2003

Elaine L. Barrios, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.


Elaine L. Barrios v. Department of the Navy

01A34748

12/1/2003

.

Elaine L. Barrios,

Complainant,

v.

Hansford T. Johnson,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01A34748

Agency No. DON-03-63126-006

DECISION

Complainant filed a timely appeal with this Commission from the

final agency decision dated July 7, 2003, dismissing 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.

and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq.

Complainant initiated EEO Counselor contact on April 30, 2003. Informal

efforts to resolve complainant's concerns were unsuccessful. Complainant

filed a formal EEO complaint dated June 5, 2003, and alleged that she was

subjected to discrimination on the bases of national origin, disability,

and in reprisal for prior EEO activity.

In its final decision, the agency stated complainant's complaint was

comprised of the following four claims<1>:

[Complainant] was moved from [her] position without paperwork and then

finally detailed to a position which is being abolished. The position

[complainant] was moved to has no potential for advancement or training.

The position [complainant] was moved to is normally a higher graded

position, yet [complainant] has been paid at her regular grade.

There was a failure to upgrade complainant from a GS-6 to a GS-7,

although other employees who were not disabled received the promotion.

Other employees received a cash award and [complainant] did not.

On June 3, 2003, [complainant's] workers' compensation claim was rejected

for [her] work related injury.<2>

The agency dismissed claims (1 )- (3) on the grounds of untimely EEO

Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency

dismissed claim (4) for failure to state a claim, pursuant to 29 C.F.R. �

1614.107(a)(1).

Claims (1) - (3)

The agency in its final decision states that complainant's detail to the

Air Terminal occurred on September 3, 2002 (claim (1)); complainant's

non-promotion occurred on or about the week of February 4, 2002 (claim

(2)); and the cash award was for performance year ending July 31, 2002

(claim (3)). The agency further stated that complainant had knowledge

of the applicable time limitations for EEO Counselor contact through

EEO posters, the local base newspaper, and complainant's receipt of a

handout entitled �Understanding the EEO Complaint Process� on March 8,

2002. Furthermore, the agency asserts that none of the equitable doctrines

for extending the time limitations apply to these claims.

On appeal, complainant contends that she was unaware that the position

she was moved into was to be abolished or that the position was without

promotion potential until May 2003. Complainant further argues she was

on sick leave when others holding her position were promoted and it was

not until May 2003, that she was advised that she would not be returned

to her original position at the higher grade. In addition, on appeal,

complainant contends that she was on detail and did not learn until May

2003, that she was not receiving a cash award. Moreover, complainant

states that she did not have any training on the EEO process and that

the office to which she was detailed did not have any EEO posters until

after she filed her complaint.

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.

The record contains a copy of an e-mail from the Supervisory Transport

Management Specialist dated June 24, 2003, stating that an EEO poster

is located on the �south wall of the Air Terminal Lobby in [building]

339" and that �to the best of [his] knowledge it has been there for at

[least] two years.� In addition, the record also contains a copy of

an e-mail, dated June 23, 2003, from complainant's supervisor in the

Avionics Department Planning and Operations Office (where complainant

initially worked, prior to her detail at the Air Terminal) stating the

locations where EEO posters are maintained for that office. This e-mail

further states that complainant previously had the responsibility of

posting these notices. Furthermore, the record contains a copy of the

EEO poster, which contains information regarding the applicable time

limitations. Moreover, the record reflects that complainant received on

March 8, 2002, a copy of a handout, containing the pertinent time limits,

entitled �Understanding the EEO Complaint Process.� We find, therefore,

that complainant had constructive knowledge of the applicable time limits.

See Santiago v. United States Postal Service, EEOC Request No. 05950272

(July 6, 1995).

Regarding claim (1), relating to complainant's reassignment to the Air

Terminal, complainant contends that she did not suspect discrimination

regarding her transfer until she received a position description in

May 2003. A copy of the position description, dated May 6, 2003,

states, �[t]his is a temporary detail or assignment...there is no

career advancement opportunity or upward mobility associated with this

position.� Thus, complainant may have reasonably suspected she was

discriminated against when she was reassigned to the Air Terminal upon

receiving her position description. Because complainant received the

position description in May 2003, and her initial EEO Counselor contact

was on April 30, 2003, the Commission finds claim (1) is timely.

Regarding claim (2), the record contains a memorandum signed by the

EEO Counselor stating that complainant contacted her on March 8, 2002.

Therein, the EEO Counselor stated that complainant claimed on March 8,

2002, that on or about the week of February 4, 2002, she discovered that

three employees were promoted, while she was not; however, complainant

further stated that did not have a basis for her complaint. The record

also contains a copy of a letter to complainant from the EEO Counselor

dated April 3, 2002, in which the EEO Counselor stated that complainant

has five days from receipt of the letter if she chose to file an informal

complaint; and that if the EEO Counselor did not hear from complainant

within the five-day period, she would assume that complainant chose to

withdraw from the EEO complaint process.

The record does not contain any evidence that complainant contacted the

EEO Counselor during that five-day period. Furthermore, the Commission

has consistently held that first contact with an EEO Counselor does

not count as initial EEO contact for timeliness where complainant

seeks counseling, withdraws, and then re-initiates contact on the same

matter months later. Juarez v. Department of the Air Force, EEOC Appeal

No. 01976151 (June 3, 1998). Thus, the information in the record supports

the argument that complainant had a reasonable suspicion of discrimination

regarding her non-promotion on or about the week of February 4, 2002,

but that April 30, 2003 was her initial date of EEO contact. The agency

properly dismissed claim (2) for untimely EEO Counselor contact.

Regarding claim (3), complainant argues that she was on detail and did

not learn until May 2003, that she was not receiving a cash award. While

the agency states the cash award was for the performance year ending July

31, 2002, it does not state when the cash awards were effective or when

complainant was notified that she was not receiving one. The Commission

has consistently held that where there is an issue of timeliness, the

agency always bears the burden of obtaining sufficient information to

support a reasoned determination as to timeliness. Williams v. Department

of Defense, EEOC Request No. 05920506 (August 25, 1992). Regarding the

instant claim, the agency has not met this burden. The agency has failed

to show that claim(3) was not timely raised with an EEO Counselor.

Claim (4)

The Commission finds that the agency properly dismissed claim (4) for

failure to state a claim. In claim (4), complainant alleges she was

discriminated against when her workers' compensation claim was rejected.

We find complainant is improperly attempting to use the EEO process to

collaterally attack the outcome of the workers' compensation process.

The Commission has held that an employee cannot use the EEO complaint

process to lodge a collateral attack on another proceeding. See Wills

v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);

Kleinman v. United States Postal Service, EEOC Request No. 05940585

(September 22, 1994); Lingad v. United States Postal Service, EEOC

Request No. 05930106 (June 25, 1993). The proper forum for complainant

to have raised her dissatisfaction with the processing of her workers'

compensation claim is within that process.

In summary, the agency's decision to dismiss claims (2) and (4) was

proper and is AFFIRMED. The agency's decision to dismiss claims (1)

and (3) is REVERSED and those claims are remanded to the agency for

further processing.

ORDER (E0900)

The agency is ordered to process the remanded claims (claims (1) and (3))

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 (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

12/1/2003

Date

1While complainant's claims are not numbered

in the final agency decision nor formal complaint, the claims are numbered

herein for ease of reference.

2Complainant's formal complaint was amended to include this claim on

June 16, 2003.