01977096
12-23-1999
Joanne McNeil, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Joanne McNeil, )
Complainant, )
)
v. ) Appeal No. 01977096
) Agency No. DON-95-00102-005
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's August 25, 1997 decision dismissing
the complaint on the grounds of untimely EEO counselor contact and
mootness, is proper pursuant to the provisions of 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a) (2) and (5).<1>
A review of the record shows that complainant sought EEO counseling
on September 23, 1994, alleging that she had been discriminated
against on the basis of sex (female) when on September 3, 1994, a
male co-worker touched her in an offensive manner and tried to put his
hand down her shirt. The record reflects that on September 28, 1994,
complainant's first line supervisor met with her to inform her that he
was contemplating disciplinary action against her because she was unable
to meet the work/attendance requirements of her job; that complainant
allegedly lost her temper, threw down her identification badge and
stormed out of the meeting; and that a shop steward thereafter decided
to terminate complainant's temporary appointment based on her tardiness
record and her behavior at the September 28, 1994 meeting.<2> On October
7, 1994, complainant met with the EEO counselor for the final interview
on her complaint concerning the touching incident of September 3, 1994.
During the interview, complainant stated that she wanted to file a new
complaint because she wanted her job back. However, because she was
unable to name an EEO basis for her complaint, complainant allegedly
stated she did not wish to continue with a new complaint and asked the
EEO counselor not to initiate a new complaint.<3>
On October 25, 1994, complainant filed a formal complaint that is
the subject of the instant appeal. Therein, complainant addressed the
September 3, 1994 touching incident, but did not address her termination
or any constructive discharge issue.
On May 5, 1995, the agency issued a final decision dismissing the instant
complaint on the grounds of mootness. On appeal, the Commission reversed
the agency's dismissal of complainant's complaint. The Commission
noted that the agency stated that complainant raised the issue of
constructive discharge for the first time on June 7, 1995, when she
appealed the final decision dismissing her complaint on the grounds of
mootness. The Commission determined that the record was insufficient
to determine when and if complainant previously raised, but abandoned,
a constructive discharge claim. The Commission determined that because
the evidence was insufficient to determine when and if complainant
raised a constructive discharge claim, it found that the complaint was
improperly dismissed for mootness. The agency's decision dismissing
complainant's complaint was reversed, and the complaint was remanded for
a supplemental investigation to determine when and if complainant raised
the constructive discharge claim. McNeil v.Department of the Navy,
EEOC Appeal No. 01954733 (May 29, 1997).
In its final decision that is the subject of the instant appeal,
the agency dismissed claim (a) on the grounds of mootness. In claim
(a) complainant alleged that she had been discriminated against on
the basis of sex when on September 3, 1994, a male co-worker touched
her in an offensive manner and tried to put his hand down her shirt.
The agency found that, as relief, complainant requested more sexual
harassment training and some form of reprimand for the male co-worker.
The agency found that said relief was provided because the male
co-worker was provided with special EEO training and was also subjected
to administrative action. The final decision found that the agency's
actions had eradicated the effects of the alleged violation and that there
was no expectation that the violation would recur since complainant was
no longer employed at the agency. Accordingly, the dismissal of claim
(a) was appropriate.
In claim (b), complainant alleged that she had been discriminated
against on the basis of sex when she was forced to decide whether to
continue working in a hostile environment or terminate her employment.
The agency dismissed this claim on the grounds of Complainant's failure
to contact an EEO counselor within 45 days of the alleged incident.
The agency also dismissed this issue on the grounds that Complainant
had not brought it to the attention of an EEO counselor. The Commission
applies a "reasonable suspicion" standard to the triggering date for
determining the timeliness of the contact with an EEO counselor. Cochran
v. United States Postal Service, EEOC Request No. 05920399 (June 18,
1992). Under this standard, the time period for contacting an EEO
counselor is triggered when the complainant should reasonably suspect
discrimination, but before all the facts that would support a charge
of discrimination may have become apparent. Id.; Paredes v. Nagle,
27 FEP Cases 1345 (D.D.C. 1982).
The agency's decision dismissing claim (b). As discussed above, the
record shows that by decision dated May 29, 1997, the Commission ordered
the agency to conduct a supplemental investigation �to determine when an
if [Complainant] raised her constructive discharge [claim]�. The decision
further ordered the agency to provide complainant the opportunity to
provide evidence on this matter. The record further shows that the
agency sent a letter to complainant offering her the opportunity to
participate in the supplemental investigation. Complainant received
said letter on July 8, 1997, and was advised that she needed to respond
within 30 calendar days, because her failure to do so could result in
the dismissal of her claim. The record shows that complainant failed
to respond to the agency's letter. The Commission determines that to
the extent complainant raised the issue of constructive discharge from
agency employment, we find that she did not pursue this matter with due
diligence and, in effect, abandoned her claim. See Robinson v. Peace
Corps, EEOC Request No. 05940710 (May 2, 1995).
Accordingly, the final agency decision dismissing complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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. 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:
Dec. 23, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________ _________________________
DATE Equal Employment Assistant 1 On
November 9, 1999, revised regulations governing the EEOC's federal sector
complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 See affidavit dated August 3, 1995, executed by the Shipyard's
Production Superintendent.
3 In her affidavit, the EEO counselor further states that although
during the final interview she reminded Complainant about the 45-day
time limit for EEO counselor contact, Complainant never contacted her
again concerning the termination issue.