Elaine Morrison, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 9, 1999
01982320 (E.E.O.C. Apr. 9, 1999)

01982320

04-09-1999

Elaine Morrison, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Elaine Morrison, )

Appellant, )

)

v. ) Appeal No. 01982320

) Agency No. 97-00146-N01

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

Appellant filed a timely appeal with this Commission from a final

agency decision (FAD) dismissing an allegation 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. and � 501 of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791 et seq. Appellant alleged that

she was harassed on the bases of race (Black), sex (female), physical

disability (speech impediment), and in reprisal for prior EEO activity

when she was denied holiday pay for the �last two years.� In its FAD,

the agency dismissed the allegation for failure to initiate timely EEO

contact pursuant to 29 C.F.R. � 1614.107(b).

In Morrison v. Department of the Navy, EEOC Appeal No. 01972076 (December

3, 1997), the Commission remanded the above referenced allegation

and instructed the agency to conduct a supplemental investigation to

determine whether the appellant contacted an EEO counselor in a timely

manner on the issue of not receiving holiday pay. Specifically, the

agency was instructed to send a letter requesting the specific dates

that appellant alleges she was denied holiday pay and the date she

realized she was being discriminated against in regard to this issue.

Appellant was instructed to respond to the agency's letter within fifteen

(15) days of receipt. The agency submitted a copy of the letter sent in

compliance with the Commission's order. When appellant failed to respond,

the agency again dismissed the complaint based on untimely EEO contact.

Appellant has not submitted a statement in support of her appeal.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of an EEO 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 Ball v. United States Postal Service, EEOC Request

No. 05880247 (July 6, 1988). 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.

Upon review, we find the record is still insufficient for a determination

on the timeliness of appellant's EEO contact. While we recognize that

appellant failed to respond to the agency's request for information, the

�agency bears the burden of obtaining sufficient information to support

a reasoned determination as to timeliness.� Guy v. Department of Energy,

EEOC Request 05930703 (January 4, 1994)(quoting Williams v. Department of

Defense, EEOC Request No. 05920506 (August 25, 1992).<1> In addition, in

Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,

1993), the Commission stated that the agency has the burden of providing

evidence to support its final decisions. See Gens v. Department

of Defense, EEOC Request No. 05910837 (January 31, 1992). Clearly,

the agency is in possession of records documenting appellant's work

schedule and when holiday pay was distributed during the above referenced

two year period. Such records, in the absence of documentation from

appellant, could indicate the latest date that appellant was purportedly

denied holiday pay. Without identifying the dates on which the alleged

discriminatory incidents occurred, the agency cannot support a reasoned

determination as to the timeliness of appellant's EEO contact.

Accordingly, we VACATE the FAD and REMAND the complaint for processing

in accordance with this decision and ORDER below.

ORDER (E1092)

The agency is ORDERED to take the following action:

Within fifteen (15) calendar days of the date this decision becomes final,

the agency shall send a letter to appellant requesting that she provide:

(1) the specific dates she alleges that she was denied holiday pay; and

(2) the date she became aware she was being discriminated against with

regard to this issue. The letter shall also advise appellant that her

failure to respond within fifteen days may result in the dismissal of

her complaint;

The agency shall supplement the record with all relevant documentation

regarding the payment of holiday pay during the above referenced two

year period, as well as appellant's relevant work schedules to show any

and all dates when appellant may have been entitled to holiday pay; and

Within forty-five (45) calendar days of the date this decision becomes

final, the agency shall issue a notice of processing or a new FAD

dismissing this allegation.

A copy of the agency's notice of processing or new FAD 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:

April 9, 1999 ____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations1 We remind appellant that her failure

to respond to the agency's request for information may result in

a dismissal of her claim pursuant to 29 C.F.R. � 1614.107(g).