01a34748
12-01-2003
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.