0120071557
05-03-2007
L. Lisa Hughes, Complainant, v. Pete Geren, Acting Secretary, Department of the Army, Agency.
L. Lisa Hughes,
Complainant,
v.
Pete Geren,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120071557
Agency No. ARCEHECSA06AUG04019
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated January 25, 2007, 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.
During the period in question, complainant was employed as a Supervisory
Budget Analyst at a District of Columbia facility of the agency.
On August 22, 20061, complainant initiated contact with an EEO Counselor
and, subsequently, filed a formal EEO complaint, alleging that she was
subjected to discrimination on the bases of race (Multi-racial), color
(Black), sex (female), and reprisal for prior protected EEO activity when
the agency (a) since February 2006, continuously failed to review the
appropriateness of a six month leave restriction imposed August 2005,
(b) rescinded complainant's leave restriction on July 24, 2006 (eleven
months after it was imposed) but did not inform her of such rescission
and she did not learn of it until August 14, 2006 (c) on June 21, 2006,
issued complainant a twelve-day suspension effective July 8, 20062, and
(d) failed to grant complainant a performance award for her performance
appraisal for fiscal year 2005 and special cash award for fiscal year 2005
and 20063. Complainant's allegations were in an eight page, narrative
form attachment to her complaint form. Summarily, complainant alleged
a hostile work environment.
In its January 29, 2007 final decision, the agency dismissed claims (a),
(c), and (d), pursuant to 29 C.F.R. � 1614.107(a)(2), for initiating
contact with an EEO Counselor in an untimely manner and claim (b),
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
In addition, the agency stated that it dismissed, for untimely EEO
contact, allegations that the agency discriminated against complainant
for a formal written reprimand dated December 20, 2005 and amendment
of a Notice of Leave Restriction dated December 21, 2005.
The instant appeal from complainant followed. On appeal, complainant
stated that the agency mischaracterized her claims and, hence, applied
Federal regulations to distorted claims and that (b) states a claim
because she spent time and money to obtain medical documentation to
support sick leave absences to comply with a leave restriction that was
no longer in place.
In opposition to complainant's appeal, the agency responded that it did
not attempt to redefine complainant's claim but rather give a concise
identification of her claims from her extensive complaint statement,
complainant was not aggrieved by the action alleged in (b) because sick
leave is a privilege for which medical documentation can be requested
even without a leave restriction and the agency decided to extend
complainant's leave restriction, and timely EEO contact is based upon
the date an aggrieved party is informed of a personnel action rather
than the effective date of said action.
Where, as here, there is an issue of timeliness, "[a]n agency always
bears the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy, v. Dep't of Energy, EEOC Request
No. 05930703 (January 4, 1994) (quoting Williams v. Dep't of Defense,
EEOC Request No. 05920506 (August 25, 1992)). "Moreover, where . . . a
complainant alleges a pattern and practice of discrimination against
h[er], an agency is obligated to initiate an inquiry into whether any
allegations untimely raised fall within the ambit of the continuing
violation theory." Id. In addition, in Ericson v. Dep't of the Army,
EEOC Request No. 05920623 (January 14, 1993), the Commission stated that
"the agency has the burden of providing evidence and/or proof to support
its final decisions." See also Gens v. Dep't of Defense, EEOC Request
No. 05910837 (January 31, 1992).
In pertinent part, the EEOC Regulation found at 29 C.F.R. � 1614.107(a)(2)
allows an agency to dismiss a complaint that fails to comply with the
applicable time limits contained in 29 C.F.R. � 1614.105. EEOC Regulation
29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of an EEO 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. Dep't 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. EEOC Regulations provide
that the agency or the Commission shall extend the time limits when the
individual shows that he was not notified of the time limits and was not
otherwise aware of them, that he did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he was prevented by circumstances beyond his
control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
Here, we disagree with the agency. As indicated in 29 C.F.R. �
1614.105(a)(1), complaints of discrimination should be brought to the
attention of an EEO 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 effective date of (c), the 12-day suspension, is July 8, 2006 and
August 22, 2006 is within 45 days of that date. Further, complainant
alleged that the agency subjected her to a hostile work environment
and that the 12-day suspension was related to the leave restriction.
Accordingly, we find that (a) and (b) are part of the same unlawful
practice as and are rendered timely by (c). See National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101 (2002). In further consideration
of Morgan, we find that (c) does not render (d) timely because (d) is a
"discrete act." However, the allegation of discrimination based on the
2006 special cash award is timely on its own but for the 2005 performance
and special cash awards it is not.
Finally, we disagree with the agency's assertion that (b) fails to
state a claim. Complainant alleged hostile work environment and we find
that considering (b) together with the other incidents and in the light
most favorable to the complainant, it is sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
After a careful review of the record, we REVERSE the agency's final
decision as to (a) through (c) and the 2006 portion of (d) and AFFIRM
it as to the 2005 portion of (d). We REMAND the reversed matters to
the agency for further processing in accordance with this decision and
the Order below.
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
May 3, 2007
__________________
Date
1 The agency noted that complainant did not meet with an EEO Counselor for
an initial interview regarding her allegations. The assigned Counselor
indicated that complainant postponed and then failed to attend several
scheduled appointments for an initial interview and the counseling period,
even with an extension, expired.
2 "Absence without leave" is a charge of the suspension and complainant
indicated that the charge was based upon the imposed leave restriction.
3 We note that evidence of record suggests that the fiscal year 2006
evaluation was conducted in September 2006.
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0120071557
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071557