01a54163
12-05-2005
Judy A. Kaul, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Judy A. Kaul v. Department of Homeland Security
01A54163
December 5, 2005
.
Judy A. Kaul,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A54163
Agency No. CBP 04-302C/04-4213
DECISION
The record indicates that complainant, a Border Patrol Agent, GS-11/7,
filed her complaint, dated August 30, 2004, alleging discrimination
based on sex (female) and in reprisal for prior EEO activity when:
(1) on February 8, 2004, she started a temporary detail/assignment
to the position of Lead Border Patrol Agent (LBPA), but she did not
receive a temporary promotion to the GS-12 level for that position; (2)
in February 2004, she was not selected for a canine-handler position;
(3) on April 23, 2004, she was informed that she would not be allowed
to work any more Administratively Uncontrollable Overtime (AUO); and (4)
on July 14, 2004, she was relieved of her temporary LBPA duties, and she
was informed that she would have to start taking a non-paid lunch break.
On May 5, 2005, the agency issued its decision dismissing the complaint.
Specifically, the agency dismissed claims (1) through (3) and a portion
of claim (4), i.e., the denial for reconsideration of management's
prior decisions regarding her promotion and AUO, due to untimely EEO
Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
dismissed the remaining portion of claim (4) for failure to state a
claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The agency also stated
that complainant failed to state a claim for retaliation since she had
no prior EEO activity.
Claims (1) and (2)
With regard to claims (1) and (2), complainant indicated in her complaint
that she, initially, contacted an EEO Counselor in February 2004, �to
file a complaint but eventually dropped the complaint because [she]
was having extreme difficulties in [her] pregnancy and [she] believed
that the additional stress would only be harmful to [her] unborn child.�
On appeal, complainant further admits that she included these claims
as background information to her complaint. The Commission finds that
complainant, although she contacted an EEO Counselor in February 2004,
subsequently abandoned the subject matters from further EEO complaint
processing. Thus, the Commission finds that claims (1) and (2) were
properly dismissed by the agency.
Claim (3)
With regard to claim (3), the record indicates that the alleged incident
occurred on April 23, 2004. Complainant contacted an EEO Counselor
with regard to the subject matter on July 14, 2004, which was beyond
the 45-day time limit set by the regulations. However, on appeal,
complainant contends that she was not aware of the 45-day time limit
to contact an EEO Counselor. Specifically, complainant indicates that
she did not see any memorandum nor guidelines posted at the agency with
regard to the 45-day time limit to contact an EEO Counselor. Furthermore,
complainant argues that she was not informed of the time limits from the
EEO Counselor she previously contacted. In response to complainant's
contentions, the agency incorrectly argues that it is complainant's burden
to submit proof that the agency did not display EEO information at the
work place. The Commission has held that constructive knowledge will
be imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under Title VII.
Thompson v. Department of the Army, EEOC Request 05910474 (September 12,
1991). However, the agency, in the instant case, fails to provide any
evidence as to whether complainant had constructive notice of the time
limit (e.g., through the agency's posting of EEO information including the
requisite time limit to contact an EEO Counselor). Since the agency fails
to provide any evidence of constructive notice, the Commission finds that
it improperly dismissed claim (3) due to untimely EEO Counselor contact.
Claim (4)
The agency stated in its decision that with regard to the part of claim
(4) in which complainant asked for reconsideration of management's prior
decisions, i.e., not to temporarily promote her and not to allow her AUO
once her duties were modified, she failed to contact an EEO Counselor
in a timely manner. The agency explains in response to complainant's
appeal that complainant was denied AUO and her duties were modified on
April 23, 2004, but she did not contact an EEO Counselor until July
14, 2004, which was beyond the 45-day time limit. Upon review, the
Commission finds that because complainant did not have constructive
notice of the 45-day time limit to contact an EEO Counselor, her EEO
Counselor contact was timely. However, the Commission recognizes that
this part of claim (4) (reconsideration of management's prior decisions)
is not a separate matter because this part of claim (4) (as defined by
the agency) has already been raised and considered in claims (1) and
(3). Thus, the Commission finds that this part of claim (4) is properly
dismissed for stating the same claim as raised in claims (1) and (3).
See 29 C.F.R. � 1614.107(a)(1).
Regarding the portion of claim (4) concerning the alleged removal of
complainant's temporary LBPA duties, the agency found that complainant
was not aggrieved by its decision to remove her from her temporary
LBPA assignment and reassign her to the Training Office. Specifically,
the agency stated that the LBPA position to which she was detailed on
February 8, 2004, was a temporary, 90-day detail. The agency found
that complainant served in that position temporarily at management's
discretion and her holding that position for almost five months did not
convert it into a permanent one. The agency found that the transferring
of complainant back to complainant's position as a Senior Border Patrol
after five months did not cause any harm to her employment. Upon review,
the Commission finds that the agency improperly addressed the merits
of the alleged matter in a procedural dismissal. Thus, the Commission
finds that complainant was aggrieved with regard to a term, condition,
or privilege of her employment as a result of the alleged removal of
complainant's temporary LBPA duties. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). The Commission finds that
the agency improperly dismissed the portion of claim (4) concerning the
alleged removal of complainant's temporary LBPA duties for failure to
state a claim.
With regard to the portion of claim (4) concerning complainant's lunch
break, the agency maintains that in its letter dated August 3, 2004,
complainant was allowed to work a straight eight-hour shift without
a lunch break. The agency found that complainant was not aggrieved.
We find that complainant was aggrieved when she was allegedly not allowed
to work a straight eight-hour shift without a lunch break beginning
in July 2004. Furthermore, although the agency did not specifically
dismiss this portion of claim (4) as moot, we find that it is not moot
because complainant requested compensatory damages and the agency has
not shown that complainant would not be entitled to compensatory damages
if she prevailed in claim (4).
Reprisal
The agency also stated that complainant failed to state a claim of
reprisal. Specifically, the agency indicated that at the relevant time,
in her letter dated July 9, 2004, complainant asked the Chief Patrol Agent
(CPA) to reconsider its �unfair decisions� not to temporarily promote her
to the GS-12 level and not to allow her to work any AUO. On July 14,
2004, the CPA denied her requests, relieved her of her temporary LBPA
duties, assigned her to the Sector Training Office, and informed her
that she would not be allowed to work AUO and would have to start taking
a non-paid lunch break. The agency noted that complainant claimed that
her July 9, 2004 letter indicating the unfairness of not receiving AUO
and the temporary pay-promotion precipitated management's decision to end
her temporary LBPA detail and that this constituted reprisal. However,
the agency stated that since the foregoing claim was not related to any
involvement or participation in any protected EEO activity, complainant's
claim failed to state a claim of reprisal.
EEOC Regulation 29 C.F.R. � 1614.101(b) provides that no person shall be
subject to retaliation for opposing any practice made unlawful by title
VII of the Civil Rights Act (title VII) (42 USC 2000e et seq.), the Age
Discrimination in Employment Act (ADEA) (29 USC 621 et seq. ), the Equal
Pay Act (29 USC 206(d)) or the Rehabilitation Act (29 USC 791 et seq.) or
for participating in any stage of administrative or judicial proceedings
under those status. Section 704(a) of Title VII (42 U.S.C. 2000e-3(a))
provides that it shall be unlawful for an employer to discriminate against
any of his employees or applicants for employment because �he has opposed
any practice made unlawful by this title, or because he had made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this title.�
The record contains a copy of complainant's July 9, 2004 letter, which
was referenced by the agency in its decision, wherein she indicated that:
I am aware of numerous female agents who were pregnant on duty and
numerous males who were on light duty and were still allowed to work
and claim AUO. I am still unsure why I am being denied AUO. Before I
became pregnant, I was the (A) LBPA, which is full time/AUO authorized
position. . . . If I was authorized to work AUO as the LBPA prior to
becoming pregnant, I do not see the justification in denying me AUO
now because I am pregnant. . . . The only difference between me and
other LBPAs is that I am a female, I am pregnant and I am not allowed
to work AUO.
The Commission finds that complainant, clearly, opposed the agency's
alleged discriminatory actions based on her sex in the July 9, 2004
letter. Thus, the Commission finds that complainant's claim of reprisal
states a claim.
Claim (5)
The Commission notes that complainant submits her letter dated June 17,
2005, on appeal, raising the fact that the agency failed to address in its
final decision her subsequently raised claim. Specifically, complainant
indicates that she raised claim (5), wherein she alleged that on October
15, 2004, she was told that she would not be allowed to claim excludable
AUO while she was on leave status. In response, the agency proffers no
evidence or argument that complainant did not raise this new claim on or
around October 15, 2004, and/or prior to its issuance of final decision.
Furthermore, the agency has not claimed that claim (5) is being addressed
in another EEO complaint.
EEOC Regulation 29 C.F.R. � 1614.106(d) provides that a complainant
may amend a complaint at any time prior to the conclusion of the
investigation to include issues or claims like or related to those raised
in the complaint. In this case, the Commission finds that the alleged
matter is clearly related to claim (3), concerning the alleged AUO,
which was raised in the complaint. Thus, the Commission finds that the
agency improperly failed to send an acknowledgment letter to complainant
indicating its receipt of this amendment to her complaint in writing and
informing her of the date on which the complaint or amendment was filed.
29 C.F.R. � 1614.106(e). Thus, the Commission finds that the agency's
effective dismissal of this matter by failing to address the claim in
its decision is reversed and we remand claim (5) for further processing.
CONCLUSION
Accordingly, the agency's decision to dismiss claims (1) and (2),
and the portion of claim (4) concerning the agency's alleged denial of
reconsideration of the agency's decision to deny complainant's temporary
promotion to GS-12 and the agency's alleged denial of reconsideration
of the agency's decision to deny complainant the ability to work AUO,
is AFFIRMED. The agency's decision to dismiss claim (3), the remaining
portions of claim (4) (concerning the alleged removal from LBPA duties
and concerning the lunch break), and claim (5) (concerning excludable
AUO while on leave status), is REVERSED and we REMAND those claims to
the agency for further processing in accordance with the Order herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (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
December 5, 2005
__________________
Date