01982769
04-02-1999
Joanne M. DeAngelis, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Joanne M. DeAngelis v. Department of Transportation
01982769
April 2, 1999
Joanne M. DeAngelis, )
Appellant, )
)
v. ) Appeal No. 01982769
) Agency No. 2982028
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
I. INTRODUCTION
On February 26, 1998, appellant filed the instant appeal from the agency's
January 22, 1998 final decision dismissing appellant's complaint.
The agency acted pursuant to 29 C.F.R. �� 1614.107(b) (untimeliness)
and 1614.107(d) (grievance filed concerning same matter).
II. ISSUE
Whether the agency properly dismissed the entire complaint.
III. BACKGROUND
On December 11, 1997, appellant filed a 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. Appellant alleged
that she was subjected to discrimination on the basis of sex (female)
and in retaliation for prior EEO activity. The agency summarized the
allegations of the complaint as follows: appellant was discriminated
against when she 1) was refused compensatory time/pay for September 5,
1997 and September 16, 1997; 2) received an unfair performance evaluation
on March 31, 1997; 3) received a letter of reprimand on June 16, 1997;
and 4) was harassed by her supervisor on September 23 and 25, 1997.
The EEO Counselor's report shows that appellant first sought to bring
the matters raised in the complaint to the attention of the counselor
on October 29, 1997.
In its final decision the agency dismissed allegations #2 and #3 on
the ground that they were untimely. In addition, the agency dismissed
allegations #1, #2, #3, and #4 on the ground that they had been the
subject of a grievance filed by appellant pursuant to a negotiated
grievance procedure.
IV. ANALYSIS AND FINDINGS
We find that the agency correctly dismissed allegations #2 and #3 on
grounds of untimeliness. EEOC Regulation 29 C.F.R. �1614.105(a)(1)
requires that complaints of discrimination be brought to the attention
of the Equal Employment Opportunity Counselor within 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.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the 45-day limitation
period is triggered. See Ball v. USPS, 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.
In the present case, appellant did not initiate contact with an EEO
Counselor until October 29, 1997, more than 6 months after the events
described in allegation #2 and more than 4 months after the events
described in allegation #3. Therefore, unless appellant can establish
some basis for extending the 45-day deadline, her claim is time-barred.
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. 29 C.F.R. � 1614.105(a)(1)
Appellant does not contend that she was unaware of the applicable time
limits nor has she come forward with any other information that would
justify the extension of those time limits. Accordingly, we find that
allegations #2 and #3 were properly dismissed as untimely.
With respect to the agency's dismissal of allegations #1 and #4 on the
ground that these allegations had been the subject of a prior grievance,
we conclude that the agency acted correctly with respect to allegation
#1 but erred in dismissing allegation #4.
EEOC Regulation 29 C.F.R. �1614.107(d) provides that the agency
should dismiss a complaint where the complainant has elected to
pursue the allegations under a negotiated grievance procedure that
allows discrimination to be raised. The regulations further provide
that an aggrieved employee who files a grievance in writing with an
agency whose negotiated agreement permits the grieving of allegations
of discrimination, may not thereafter file an EEO complaint on the same
matter, irrespective of whether the grievance actually raised allegations
of discrimination. 29 C.F.R. �1614.301(a); Chai v. NASA, EEOC Request
No. 05970016 (July 10, 1998).
Allegation #1 of the complaint in the instant matter is based on the
alleged failure of the agency adequately to compensate appellant for
overtime work performed on September 5, 1997 and September 16, 1997.
The record discloses that on September 18, 1997, appellant submitted
a letter of grievance to the agency in which she grieved the refusal
of the agency to compensate her for overtime work she had performed.
The record also contains excerpts from a collective bargaining agreement
between the agency and the American Federation of Government Employees
which contains a grievance procedure "that allows discrimination to be
raised." Under these circumstances, 29 C.F.R. �1614.107(d) bars appellant
from raising the issue of uncompensated overtime in the instant complaint.
Accordingly, the agency correctly dismissed allegation #1.
The same prohibition does not apply to allegation #4 of the complaint.
The grievance filed by appellant, which the agency seeks to raise as
a bar to allegation #4, was filed on September 18, 1997. The acts of
harassment described in allegation #4 were said to have taken place on
September 23, and 25, 1997, after the grievance was filed. For this
reason, the subject matters of the grievance and of allegation #4 are
self-evidently not the same and 29 C.F.R. �1614.107 has no application.
The agency erred in dismissing on this basis.<1>
V. CONCLUSION
For the foregoing reasons, we AFFIRM the final agency decision with
respect to allegations #1, #2, and #3, VACATE the final agency decision
with respect to allegation #4 and REMAND the allegation to the agency
in accordance with this decision and 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. � 1614.10.
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 (T0993)
This decision affirms the agency's final decision 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 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.
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. 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 (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 2, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 Because we have concluded that allegations #2 and #3 were properly
dismissed as untimely, we do not address the propriety of the
agency's decision also to dismiss those allegations pursuant to 29
C.F.R. �1614.107(d).