01985240
06-18-1999
Karen Spitz, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Karen Spitz v. Department of Transportation
01985240
June 18, 1999
Karen Spitz, )
Appellant, )
)
v. ) Appeal No. 01985240
) Agency No. 5-98-5047
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
The appellant timely filed an appeal with this Commission from a final
agency decision (FAD), dated May 19, 1998, which the agency issued
pursuant to EEOC Regulation 29 C.F.R. �1614.107(b). The Commission
accepts the appellant's appeal in accordance with EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue presented in this appeal is whether the agency properly
dismissed a portion of appellant's complaint for untimely EEO counselor
contact.
BACKGROUND
Appellant contacted an EEO counselor on November 20, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that she
was the victim of unlawful employment discrimination on the bases of sex
(female) and reprisal (prior EEO activity). Informal efforts to resolve
appellant's concerns were unsuccessful. Accordingly, on January 16,
1998<1>, appellant filed a formal complaint.
The agency dismissed a portion of appellant's complaint for failing
to timely contact an EEO Counselor. The agency defined the dismissed
allegations as follows:
1. On May 22, 1997 appellant's certifications for ASR-9 and MODE-S
Systems were removed.
On June 17, 1997 appellant was given an Unsatisfactory Performance
Notice.
On June 17, 1997 appellant was given a Performance Improvement Plan.
On appeal, the appellant contends that she did timely contact an EEO
counselor. Appellant argues that she spoke and corresponded with an
EEO counselor, regarding the dismissed allegations, before 45 days
from May 22, 1997 had passed. Alternatively, appellant asserts that
the 45 day time limit should be extended because she did not suspect
and reasonably should not have suspected discrimination until November
15, 1997. On that date, appellant received documents regarding her
proposed removal from service and she learned that her supervisor was
responsible for the removal of her certifications, the unsatisfactory
notice, and performance improvement plan. Appellant had previously filed
sexual harassment charges against the same supervisor. It was only at
that point, appellant argues, that she suspected discrimination based
on reprisal. Lastly, appellant contends that the dismissed allegations
constitute a continuing violation. On June 30, 1998 appellant filed
another EEO complaint regarding her termination. She argues that the
dismissed allegations are related to this timely allegation.
ANALYSIS AND FINDINGS
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 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.
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.
The Commission has held that, where, as here, there is an issue of
timeliness, "[a]n agency always bears the burden of obtaining sufficient
information to support of reasoned determination as to timeliness." See
Guy, Jr. v. Department of Energy, EEOC Request No. 05930703 (January
4, 1994) (quoting Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992)). We find that, in this case, the agency
has not met the burden. The Commission is unable to independently analyze
the record and determine when appellant contacted an EEO counselor.
In the instant case, we are not persuaded by appellant's assertions
that she only developed a reasonable suspicion of discrimination in
November 1997. The record is unclear regarding appellant's assertion
that she did timely contact an EEO counselor. The Counselor's Report
supports the agency's contention that appellant initially contacted the
EEO counselor on November 20, 1997. Documentation regarding an earlier
contact is absent, though on appeal appellant identifies an EEO Counselor
with whom she allegedly spoke sometime within 45 days of May 22, 1997.
The Commission finds that a remand is necessary for a supplementation
of the record concerning appellant's counselor contact in May/June 1997.
Moreover, where, as in this case, a complainant alleges recurring
incidents of harassment, "an agency is obligated to initiate an inquiry
into whether any allegations untimely raised fall within the ambit of
the continuing violation theory." See Guy v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994)(citing Williams). The agency
failed to address the continuing violation theory and therefore, the
FAD must be vacated and remanded for supplementation of the record.
CONCLUSION
Accordingly, the agency's decision dismissing a portion of the complaint
for untimely counselor contact is VACATED. The complaint is REMANDED
for a supplemental investigation as ordered below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
(1) The agency shall obtain true copies of any and all correspondence, and
other relevant documentation, pertaining to when appellant first requested
EEO counseling as to the dismissed allegations. Relevant documentation
shall include, but not be limited to, affidavits or affirmations of
persons, including appellant after appropriate notice to her counsel,
with first-hand knowledge of the dates of appellant's request for EEO
counseling and/or when she knew or should have known of the dismissed
allegations.
(2) In dismissing any of the allegations for untimeliness, the agency
shall provide a detailed and reasoned analysis and the facts relied upon
as to each and every allegation dismissed.
(3) Within sixty (60) days of the date of this decision becoming final,
the agency shall either issue a FAD dismissing the allegations or accept
the allegations for processing. A copy of the final decision or notice
of processing must be submitted 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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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.
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:
June 18, 1999
___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The FAD and a letter from the agency acknowledging receipt of the
complaint erroneously stated the date appellant's complaint was filed
as January 16, 1997.