01985992_r
08-27-1999
Jacquelyn P. Keys, Appellant, v. Alan Greenspan, Chairman, Federal Reserve System, Agency.
Jacquelyn P. Keys, )
Appellant, )
)
v. ) Appeal No. 01985992
) Agency No. 98-03-002
Alan Greenspan, )
Chairman, )
Federal Reserve System, )
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., and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq. Appellant received the final
agency decision on July 8, 1998. The appeal was postmarked July 29, 1998.
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 appellant's
complaint on the grounds of failure to contact an EEO Counselor in a
timely manner.
BACKGROUND
The record reveals that in a memorandum dated December 2, 1997, the
Division of Banking Supervision and Regulation recommended to the Division
of Human Resources Management that appellant be promoted to grade FR
22/23 with an appropriate title change and a salary increase of 10%.
Appellant initiated contact with an EEO Counselor on January 12, 1998.
On January 30, 1998, appellant left a voice message for the EEO Counselor
wherein she requested a report of their January 12, 1998 meeting.
In an e-mail message dated February 4, 1998, appellant stated to the EEO
Counselor that the meeting of January 12, 1998, concerned an EEO matter.
Appellant stated that she raised her allegations of discrimination
based on her age and sex during that meeting. Appellant stated that
the EEO Counselor told her that she would speak to other people and
get back to her. Appellant further stated that she called the EEO
Counselor on February 2, 1998, and at that time, the EEO Counselor told
her she believed that this matter was a work-related grievance rather
than an EEO matter. In an e-mail message dated February 5, 1998, the
EEO Counselor informed appellant that it was not her recollection that
appellant referred to discriminatory acts at the January 12, 1998 meeting.
The EEO Counselor noted that appellant did not clearly state allegations
of discrimination until February 4, 1998. In an e-mail message dated
February 11, 1998, appellant stated to the EEO Counselor that the reason
she came to her is because she is an EEO Counselor and she wanted to
discuss her discrimination complaint. Appellant maintained that she told
the EEO Counselor that she had been discriminated against based upon her
age and sex and that her pension rights would be adversely impacted.
Appellant stated that although her reclassification was approved in
December 1997, by her Division, nothing has been formally approved.
Appellant met again with the EEO Counselor on February 12, 1998.
On March 17, 1998, appellant filed a formal EEO complaint wherein she
alleged that she had been discriminated against on the bases of her sex
(female) and age (62) when she did not receive a salary and job title
reflecting her duties and responsibilities.
In its final decision, the agency dismissed the complaint on the grounds
that appellant failed to contact an EEO Counselor in a timely manner. The
agency determined that appellant should have had a reasonable suspicion
of discrimination in October 1997, when she discovered a job posting for
a grade level 22-24 position, with similar responsibilities and duties as
she was performing. Further, the agency stated that appellant has been
questioning her job classification for the past 8-10 years. The agency
noted that appellant stated that this issue was raised during her annual
performance reviews, budget time, and mid-year budget reviews.
On appeal, appellant contends that the discriminatory event at issue was
the failure or refusal of the agency to retroactively recommend her for
reclassification, and to not recommend her for promotion to the highest
step within grade 23. Appellant notes that fewer than 45 days passed
from the December 2, 1997 memorandum to the Division of Human Resources
Management until she met with an EEO Counselor on January 12, 1998.
Further, appellant maintains that she raised discrimination in that
meeting with the EEO Counselor, and that the EEO Counselor only states
that it is her recollection that she did not mention discrimination.
In response, the agency submits an affidavit from the EEO Counselor,
who states that when she explained the categories of discrimination to
appellant, appellant did not inform her that she wanted to pursue an EEO
complaint and she did not request EEO counseling. The EEO Counselor
states that appellant replied that she did not know what she wanted
to do. The EEO Counselor notes that she did not provide appellant
with the notice of rights because she did not believe appellant was
initiating the EEO process. According to the EEO Counselor, she advised
appellant that the matter appeared to be a dispute with management that
appellant may want to raise with the Employee Relations Office, and
that the Employee Relations Office subsequently worked with appellant
to resolve her concerns. The agency maintains that the January 13,
1998 meeting did not constitute an initiation of the EEO process.
The agency argues that the earliest point that appellant initiated the
EEO process was on January 30, 1998, when appellant requested that the
EEO Counselor give her a copy of her report. With regard to the nature
of the discriminatory event, the agency asserts that in her complaint,
appellant stated that her allegations were disparity in pay, grade, and
benefits for work performed. The agency argues that appellant has raised
these issues over a period of 8-10 years. Further, the agency asserts
that appellant was aware of the disparity in pay, grade, and benefits
for work performed no later than October 1997, when she saw a vacancy
announcement for a position that described her job responsibilities.
The agency maintains that the memorandum of December 2, 1997, was not
referred to by appellant as the date of the discriminatory event during
the processing of the complaint.
ANALYSIS AND FINDINGS
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.
Upon review of the record, we find that the alleged discriminatory event
at issue is the December 2, 1997 letter from the Division of Banking
Supervision and Regulation to the Division of Human Resources Management
that failed to retroactively reclassify appellant. Appellant's concern
about the disparity in her pay, grade, and benefits is a reflection
of her belief that she has not been classified properly in terms of
her job responsibilities. We further find that appellant initiated
contact with an EEO Counselor on January 12, 1998. Although appellant
may not have conveyed in a succinct manner to the EEO Counselor her
belief that she was being discriminated against, we find that appellant
is credible and that in general she presented the issue of her not
being retroactively reclassified as a form of disparate treatment.
Appellant's contact of an EEO Counselor on January 12, 1998, was within
the 45-day limitation period. Accordingly, the agency's decision to
dismiss appellant's complaint on the grounds of untimely EEO contact
was improper. The complaint is hereby REMANDED for further processing
in accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint 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:
August 27, 1999
DATE
Carlton
M. Hadden,
Acting
Director
Office of Federal Operations