0120082342
08-04-2008
Lynne Cunningham, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Lynne Cunningham,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082342
Agency No. ARBENNING08JAN00266
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 26, 2008, 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.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO counselor contact.
At the time of the events at issue, complainant, a physician, was
employed by Medical Doctors Associates (MDA), a subcontractor to Altos
Federal Group, which had a contract with the agency to supply medical
services at the Martin Army Community Hospital (MACH), Fort Benning,
Georgia. The record indicates that on August 6, 2007, complainant
was informed that her MACH privileges had been placed in "abeyance,"
which apparently meant that her privilege to practice medicine at MACH
had been temporarily suspended. Effective August 30, 2007, complainant
resigned from her position at MACH.
The record indicates that complainant contacted this Commission's
Atlanta District Office and filed a charge of discrimination, dated
January 11, 2008, against the agency. The EEOC's Atlanta District
Office sent the agency a request for information on January 17, 2008,
and shortly thereafter referred complainant to the agency's EEO office
at Fort Benning. The agency conceded that it met the criteria to be
considered a joint employer of complainant, and provided her with EEO
counseling and a notice of right to file a formal complaint under the
29 C.F.R. Part 1614 process.
In her formal complaint, filed on March 18, 2008, complainant
alleged that she was subjected to discrimination on the basis of race
(African-American) and retaliation when she received a letter dated
August 6, 2007, placing her hospital medical privileges in abeyance,
and when she was forced to resign from the position she occupied at MACH
under the perception that she would be fired (constructive discharge).
The complaint also alleged that the agency was refusing to verify
her employment which prevents her from pursuing employment at other
hospitals.1 In a decision dated March 26, 2008, the agency dismissed
the complaint for failure to seek pre-complaint counseling within 45
days of the alleged discriminatory matters. The instant appeal followed.
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. There is
no dispute that complainant did not meet this time limitation. However,
the time limitation is subject to waiver, estoppel and equitable tolling.
29 C.F.R. � 1614.604(c). In the instant case, we find that complainant,
as an employee of a subcontractor of the agency, was understandably
confused about whether she needed to raise her charge of discrimination
in the private sector process through EEOC's Atlanta District Office
or in the federal sector complaint process by seeking EEO counseling
through the agency. Complainant contacted the EEOC's Atlanta District
Office within the time frames provided for in that process.2 Her charge
was then referred to the agency, which subsequently determined it was
complainant's joint employer and that she was entitled to use the federal
sector process. Under these unique circumstances, we conclude that it
is appropriate to waive the forty-five day time limitation for seeking
EEO counseling.
Accordingly, the agency's dismissal of the complaint is REVERSED and the
complaint is REMANDED to the agency for further processing pursuant to
the Order set forth below.
ORDER (E0408)
The agency is ordered to process the remanded complaint in accordance
with 29 C.F.R. � 1614.108 et seq. 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 (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
August 4, 2008
__________________
Date
1 We note that the agency did not specifically address this claim in
its final decision. However, we are assuming it was also included in
the agency's dismissal of the complaint.
2 Generally, in the private sector, individuals have 180 days to file
a charge with the Commission.
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0120082342
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082342