01A23797_r
05-27-2003
Judith McKoy, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Judith McKoy v. Department of Transportation
01A23797
May 27, 2003
.
Judith McKoy,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A23797
Agency No. 3-02-3023
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 30, 2002, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of race, sex, and reprisal for prior EEO activity when:
After being on extended sick leave from March 26, 1999 to January 3,
2000, on complainant's first day back at work, her supervisor informed her
that she had to work 50 days or more to complete her performance period
before she could be given an appraisal for the period ending September
30, 1999, although the absolute last day for completing appraisals for
that performance period was January 14, 2000;
After attending a train-the-trainer session at the FAA's Center for
Management Development (CMD) in May 2000, complainant was instructed
to provide training to the regional office supervisors on the new
labor contract and pay system with less than one day's notice with no
opportunity to prepare;
Complainant was continually bypassed on information and instructions to
employees under her supervision;
Agency management reversed complainant's decision to establish and
advertise a new position in the section she supervises after the division
management became aware of complainant's favorable EEO decision that
was rendered in February 2000;
Complainant was harassed by a manager regarding requests for information
from him which was needed to fulfill the responsibilities of her position;
A manager refused to attend a meeting and provide information which
complainant needed to perform the duties of her position;
The division manager initiated a security investigation regarding her
activities within weeks of the issuance of complainant's EEOC decision;
Failure by the FAA Office of Civil Rights to allow her to provide input
to an EEO counselor about a complaint filed against her;
In September 2000, complainant was the only supervisor denied an award
at the end of fiscal year 2000;
In September 2000, the division manager refused to allow complainant to
give a cash award to a female employee in the Human Resources Management
Division;
The division manager had ASO 700 conduct an investigation with complainant
as the subject;
Complainant was deprived of her right to representation at an interview
conducted by an ASO 700 employee; and
Complainant's request for restoration of unused annual leave was denied
by the division manager.
The agency dismissed claims 1 - 12, pursuant to 29 C.F.R. � 1614.107(a)(2)
for untimely EEO Counselor contact. The agency dismissed claim 13
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
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 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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). 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 its final decision, the agency states that complainant initiated
EEO counseling on February 21, 2001. We find the record is not clear
regarding complainant's initial EEO contact. On appeal, complainant
disputes that any of her claims are untimely and argues that she contacted
the Director of the agency's Southern Division of the Office of Civil
Rights, a person logically connected with the agency's EEO process, in
November 2000, and that she received a response acknowledging her contact.
Complainant submits copies of her electronic mail messages to the agency
dated November 6, 2000, requesting preservation of her rights to pursue
the EEO complaint process. Neither in its final decision, nor on appeal,
does the agency address complainant's evidence. The EEO Counselor's
Report, however, indicates complainant first sought counseling on April
5, 2001. The record further discloses correspondence from complainant
to the EEO Counselor dated February 21, 2001. Accordingly, we are unable
to ascertain when complainant's initial EEO contact occurred to determine
whether complainant's claims were timely raised. Moreover, we note that
claims 1 - 12 do not specify dates of occurrence. We are therefore
unable to determine whether complainant timely sought EEO counseling
regarding the events described in claims 1 - 12. On remand, we direct
the agency to verify the date of complainant's initial EEO contact and to
clarify the dates of occurrence for the events described in claims 1 - 12.
With respect to claim 13, we find that complainant has essentially alleged
non-compliance with our decision in McKoy v. Department of Transportation,
EEOC Appeal Nos. 07A10010 & 01A10533 (March 14, 2002), which, among other
relief, ordered the agency to restore to her 322 hours of annual leave.
This claim does not state an independent claim of discrimination and is
properly dismissed for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1).
On appeal, complainant explains that the agency restored the 322 hours of
leave on November 1, 2000, which did not allow her sufficient opportunity
to use the leave before the end of the leave year. Record documents
indicate, however, that complainant again requested restoration of
106.45 hours of leave that she could not use prior to the end of the
leave year and that the agency approved the restoration of 106.45 hours
of annual leave to complainant's leave balance on February 20, 2001.
Complainant admits that the requested leave was restored. We find,
therefore, that the agency has complied with that portion of our prior
decision (EEOC Appeal Nos. 07A10010 and 01A10533) regarding restoration
of complainant's annual leave.<1>
In conclusion, we VACATE the agency's dismissal of claims 1 - 12, and we
REMAND claims 1 - 12 for further processing as directed below. We AFFIRM
the agency's dismissal of claim 13 for the reasons set forth herein.
ORDER
The agency shall supplement the record with the following:
The agency shall obtain statements from all persons with relevant
knowledge, including the Director, Office of Civil Rights, Southern
Division, regarding complainant's initial EEO contact sufficient to
establish the timeliness of the complainant's claims.
The agency shall respond to complainant's allegations and evidence that
she contacted an EEO Counselor by electronic mail messaging to preserve
her rights in November 2000.
The agency shall obtain from complainant a statement under oath or
affirmation, with accompanying documentation, if any, clarifying the
dates of the alleged discriminatory events described in claims 1 - 12.
Within 30 days of the date this decision becomes final, the agency shall
either issue a new final decision dismissing complainant's claims 1 -
12 or issue a letter accepting the claims for investigation. A copy
of the new final decision or acceptance letter must be submitted to the
Compliance Officer, as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 27, 2003
__________________
Date
1Complainant has submitted documents on
appeal that may indicate that complainant believes that the agency
has not complied with other portions of the Commission's decision in
McKoy v. Department of Transportation, EEOC Appeal Nos. 07A10010 &
01A10533 (March 14, 2002). If complainant believes that the agency is
not complying with a decision issued by the Commission, then she may
petition the Commission for enforcement of such a decision pursuant to
29 C.F.R. � 1614.503.