L. Lisa Hughes, Complainant,v.Pete Geren, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 3, 2007
0120071557 (E.E.O.C. May. 3, 2007)

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(b) rescinded complainant's leave restriction on July 24, 2006 (eleven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.

??

??

??

??

2

0120071557

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

6

0120071557