Joanne M. DeAngelis, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionApr 2, 1999
01982769 (E.E.O.C. Apr. 2, 1999)

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).