01985296
08-06-1999
Julia A. LeBlond, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Julia A. LeBlond, )
Appellant, )
)
v. ) Appeal No. 01985296
) Agency No. 96324OR
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
Julia A. LeBlond (hereinafter appellant) filed an appeal with this
Commission from a final decision of the agency concerning her 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.
The final agency decision was received by appellant on June 6, 1998.
The appeal was postmarked June 24, 1998. Therefore, the appeal is timely
(see 29 C.F.R. � 1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
On November 19, 1996, the agency dismissed appellant's complaint (Agency
No. 963240). Appellant appealed the dismissal to this Commission on
November 26, 1996. (EEOC Appeal No. 01971310). On March 4, 1998, the
Commission remanded one allegation in the complaint for supplemental
investigation to determine whether appellant initiated EEO counseling
within the time requirements and whether the allegation stated a claim.
The remanded issue alleged that the agency discriminated against
appellant on the bases of age and reprisal when it failed to promote
her for the past three (3) years. In her complaint, appellant included
a list of the 16 positions for which she was not selected and their
vacancy announcement numbers.<1>
On remand, the agency conducted a supplementary investigation and issued
a final decision, dismissing the allegation for untimely EEO counselor
contact and, in terms of certain nonselections, for failure to state
a claim. It is from this agency decision that appellant now appeals.
We note that the supplemental investigation conducted by the agency did
not result in all of the information the agency was ordered to provide.
Certain documents in the record reveal that the agency may no longer
have the requested paperwork on every vacancy announcement at issue.
The agency also failed to provide the requested statement under oath
or affirmation as to when and how appellant was notified she was not
being promoted on 16 occasions. However, we find the information on
the nonselections provided by appellant, along with what the agency was
able to produce, is sufficient to allow a determination to be made.
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 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 Ball v. United States Postal
Service, 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.
As noted above, the agency has not provided documentation necessary
to determine when appellant knew of each nonselection or the names of
the selectees and effective date of promotion. However, the statement
provided by appellant under affirmation (dated �received� by the agency on
April 14, 1998) reveals that all but five of her claims of discriminatory
nonselection are untimely. Appellant did not initiate EEO counseling
until June 28, 1996. Therefore, in order for her claims of discrimination
to be timely, appellant must have known of her nonselections no earlier
than May 14, 1996, which is 45 days prior to her initial EEO counselor
contact. By her own affirmation, appellant was aware of her nonselections
for the majority of the vacancy announcements well before this date.
Moreover, in terms of the earliest nonselections, the record reveals that
appellant suspected that they were the result of discrimination as early
as January 2, 1995, when she initially contemplated filing a complaint.
Therefore, the agency's dismissal of the allegations dealing with vacancy
announcements NY-R 95-008CAW, NY/95-004GH, NY-R/95-005JCB, NY-R-006JCB,
NY/95-003LM, NY/94-018GH, NY-R/94-037CW, NY-R/94-040CW, NY-R/94-003CW,
NY-R/93-048JB, NY-R/93-052GH, and R/950110CAW, for untimely EEO Counselor
contact was proper and is AFFIRMED.
While the language of the final decision is unclear, on appeal the
agency clarifies that it did not dismiss the allegation regarding the
nonselections based on the remaining five vacancy announcements for
untimely EEO contact.<2> Rather, the agency found that in regard to
Vacancy Announcements NY-R/96-006CAW, NY-R/96-004CAW, NY-R/96-001ADB,
NY-R/95-011JCB and NY-R/95-010CAW, appellant failed to state a claim
because the announcements were never used by management to fill the
available positions. Therefore, the agency argues, there was no agency
action nor injury to appellant upon which a complaint of discrimination
could be based.
EEOC Regulation 29 C.F.R. � 1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that she has been
discriminated against by that agency because of, among other things,
retaliation due to prior EEO activity. 29 C.F.R. � 1614.103(a). The only
proper questions in determining whether a complaint raises allegations
within the purview of the EEO process are whether a complainant is
aggrieved and whether she has alleged employment discrimination on a
basis covered by the EEO statutes. Hobson v. Department of the Navy,
EEOC Request No. 05891133 (March 2, 1990); Cartrett v. United States
Postal Service, EEOC Request No. 05950744 (February 8, 1996).
Commission precedent has long defined an �aggrieved� employee as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Here, the agency argues that because the vacancy announcements at issue
were not used to fill the positions, appellant is not aggrieved. However,
in regard to these five vacancy announcements, the record indicates that
appellant alleged that these announcements were withdrawn or otherwise
not acted upon in retaliation against her. Statements to this effect are
made in two letters to an EEO Specialist (one dated September 17, 1996,
and the other undated except for a �received� stamp on April 14, 1998)
and in appellant's appeal. While appellant does not specify that the
retaliation was due to her prior EEO activity, the record reveals such
activity, including the filing of a complaint in January 1995 which was
subsequently withdrawn, as well as appellant's constant questioning of the
selection process which continuously failed to result in her promotion.
Moreover, other documents in the record--such as a letter to the agency
dated February 19, 1997, and the agency's own statements in response
to the appeal of the original complaint in this matter--establish that
appellant alleged that her nonselections were due to retaliation for
her previous complaint, and her inquiries into the selection process.
We find that these documents and statements from the appellant illustrate
that appellant alleged that the withdrawal of the vacancy announcements
was in retaliation against appellant for her prior EEO activity and
motivated by a desire not to promote her. This allegation is sufficient
to render appellant aggrieved. Moreover, appellant has alleged a basis
covered by the EEO statutes, i.e., reprisal. Therefore, appellant has
stated a claim.<3>
Accordingly, the agency's dismissal of appellant's complaint as it relates
to vacancy announcements NY-R/96-006CAW, NY-R/96004CAW, NY-R/96-001ADB,
NY-R/95-011JCB and NY-R/95-010CAW was improper and is REVERSED and
REMANDED in accordance with the ORDER below and applicable regulations.
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. � 1614.410.
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:
Aug. 6, 1999 DATE
Carlton M. Hadden, Acting Director Office of Federal
Operations
1 There is some confusion in the record regarding the age discrimination
claim. In her current appeal letter, appellant notes that while she
discussed raising an age-based claim in her complaint, she only in fact
meant to claim discrimination on the basis of retaliation for prior EEO
activity. As such, this decision will only address her retaliation claim.
2 In the agency's final decision, the agency included a long discussion
on untimeliness and continuing violation. That discussion ended with
a paragraph which noted that the complaint was dismissed for failure
to state a claim because there were no selections made relative to the
1996 vacancy announcements and for untimeliness. However, the appeal
clarifies that only the claims regarding five specified announcements
were dismissed for failure to state a claim, whereas the others were
dismissed for untimeliness.
3 These remanded allegations of discriminatory nonselection cannot be
used to waive the time limits for the untimely raised nonselections.
The Commission has held that the time requirements for initiating EEO
counseling can be waived as to certain allegations within a complaint
when the complainant alleges a continuing violation, i.e., a series of
related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See McGivern v. United States Postal
Service, EEOC Request No. 05901150 (December 28, 1990). However, a
nonselection is a discrete act with a degree of permanence which should
have triggered appellant's awareness and duty to assert her rights.
See Woljan v. Environmental Protection Agency, EEOC Request No. 05950361
(October 5, 1995). Therefore, the theory of continuing violation cannot
be used to waive the time requirements and the agency's dismissal of
the allegations regarding the untimely nonselections was proper.