0120080201
03-27-2008
Lequan T. Taylor, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Lequan T. Taylor,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120080201
Agency No. 200721193FAA02
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 24, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of race (African-American) when:
1. On February 16, 2007, she was found ineligible for the position of
Instrumental Systems Specialist, FV-1750-J, advertised under vacancies
AWA-07-LB63094-91707 and AWA 07-LB63094-91700;
2. On January 18, 2007, a detail opportunity was advertised (Announcement
No. AWA-AJA-07-LB012507) at the I/J band not at the GS-12/13 or H/I band
equivalent;
3. On January 12, 2006, the agency advertised vacancy
AWA-AJA-06-1805419-01401 for a Management and Program Analyst, FV-0343
at the J band level;
4. On June 6, 2005, the agency advertised vacancy AWA-TOA-05-SB51271-78940
for a Management and Program Analyst, FV-0343 at the J band level;
5. From September 7, 2004 until January 31, 2005, she was not promoted;
and
6. Several issues were addressed/presented during Alternate Dispute
Resolution mediation.
For the reasons set forth below, the agency's decision is affirmed in
part, reversed in part and remanded.
The agency dismissed claims 1-5 as untimely pursuant to EEOC Regulation
29 C.F.R. � 1614.107(a)(1). Specifically, the agency determined that
complainant's EEO contact on March 6, 2007 regarding claims 1-5 was
untimely. Alternatively, the agency dismissed claims 2-4 and claim 6 for
failure to state a claim in accordance with EEOC Regulation 29 C.F.R. �
1614.107(a)(1).
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 Howard v. Department 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 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.
In its final decision, the agency determined that claim 1 was untimely
brought to the attention of an EEO Counselor. Specifically, the agency
found that complainant first learned in September 2004 that she was
ineligible for promotion to the GS-12 level and that as a result of
the agency's failure to promote her; she was rendered non-eligible for
consideration at the J-band level; including the positions described
in claims 1-4. The Commission finds that claim 1 was timely raised.
The fact that complainant may have learned in September 2004 that she
was ineligible for promotion does not render untimely, her claim that she
was denied a promotion in February 2007. The record indicates that she
contacted an EEO Counselor on March 6, 2007 regarding her non-selection
on February 16, 2007 for the Instrumental Systems Specialist position.
In that regard, we find that the agency's dismissal of claim 1 as untimely
was improper. The Commission finds that complainant's counselor contact
on March 6, 2007 regarding her February 16, 2007 non-selection was timely.
The agency's decision regarding claim 1 is reversed and remanded.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case 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).
With respect to claims 2, 3, and 4, the record reflects that complainant
never actually applied for the positions at issue; namely two Management
and Program Analyst positions and a detail. A review of complainant's
formal complaint indicates that complainant claims that the agency
discriminated against her by failing to advertise the positions described
in claims 2, 3 and 4 at a level for which she was eligible. However,
complainant failed even to apply for the positions at issue. As such,
she cannot be rendered aggrieved. Therefore, we find that the agency's
dismissal of claims 2, 3 and 4 for failure to state a claim was proper.
The agency's decision in that regard is affirmed.
The Commission further finds that the agency's dismissal of claim 6 on the
grounds that it failed to state a claim was proper. Complainant alleges
in claim 6 that certain statements and/or actions made by the agency
during settlement negotiations were discriminatory. Complainant has
failed to demonstrate that she suffered harm to a term condition,
or privilege of her employment with respect to claim 6. Moreover,
"settlement negotiations, including any statements or proposals, are to be
treated as confidential and privileged to facilitate a candid interchange
to settle disputes informally. Harris v. Department of the Navy,
EEOC Request No. 05941002 (March 23, 1995). Therefore, we the agency's
decision dismissing claim 6 for failure to state a claim is affirmed.
Finally, the Commission finds that the agency's dismissal of claim 5
on the grounds of untimely EEO counselor contact was proper. In claim
5, complainant alleges that from September 7, 2004 until January 31,
2005, she was not promoted. However, complainant waited three years;
until March 6, 2007; to seek counseling regarding the agency's alleged
failure to promote her. The Commission therefore, affirms the agency's
dismissal of claim 5 as untimely in accordance with EEOC Regulation 29
C.F.R. � 1614.107(a)(1).
Accordingly, the agency's decision dismissing claim 1 as untimely is
reversed. Claim 1 is remanded to the agency in accordance with this
decision and the Order below. The agency's decision dismissing claims 2,
3, 4, 5 and 6 is affirmed for the reasons set forth 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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
March 27, 2008
__________________
Date
2
0120080201
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120080201