01986518
08-31-1999
Malinda D. Pugh, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Malinda D. Pugh v. Department of the Navy
01986518
August 31, 1999
Malinda D. Pugh, )
Appellant, )
)
v. ) Appeal No. 01986518
) Agency No. 98-00060-053
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On August 28, 1998, appellant filed a timely appeal of a final agency
decision, which was dated July 24, 1998, dismissing allegation (c) in
her complaint, pursuant to 29 C.F.R. �1614.107(b), due to untimely EEO
Counselor contact.<1>
In its final decision, the agency identified the allegations of
appellant's June 23, 1998 complaint as whether appellant, a Program
Analyst, GS-12, was discriminated against when: (a) on May 12, 1998, she
received a SF-52 which documented her performance of recognized higher
level supervisory duties as a detail assignment in 120-day increments to
"unclassified duties" retroactive to May 19, 1997 through March 31, 1998,
resulting in a constructive demotion; (b) on May 12, 1998, she received
an annual performance rating of "Outstanding" for the period of April 1,
1997 through March 31, 1998, which referenced a "detail" assignment which
was not established in accordance with proper personnel policies; and
(c) her supervisor, while she was on the "detail" assignment, described
above, mandated preparation of an abbreviated position description with
full knowledge that it could not contain information necessary for proper
position classification, thereby prohibiting correct GS-13 classification
of the position to which appellant was detailed. The agency accepted
allegations (a) and (b) and dismissed allegation (c) due to untimely
EEO Counselor contact. The agency stated that appellant's EEO Counselor
contact on May 13, 1998, with regard to allegation (c), was beyond the
45-day time limit set by the regulations. The agency indicated that
the alleged incident of allegation (c) occurred during September 1997
and February 1998, when appellant and her supervisor discussed, through
e-mail, the position description at issue.
On appeal, appellant contends that the alleged discriminatory action in
allegation (c) was a proposed action until she received the May 12, 1998
personnel action notice. Appellant also states that she was informed
by an agency's Labor Relations Specialist that her complaint must be
based on a completed personnel action rather than any proposed actions.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
Initially, we, upon review of appellant's complaint, note that
the alleged discriminatory incident of allegation (c) is not a
proposed action, rather it is an actual action, i.e., the denial of
GS-13 classification/position description of her detail assignment.
The record indicates that while appellant was on her detail assignment,
there were numerous e-mail correspondences between her and her supervisor
concerning rewriting of her position description from June 1997 through
February 1998. Specifically, during this time period, appellant indicated
her dissatisfaction and disagreement about her position description,
which was going through several revisions, to her supervisor. Finally,
on February 25, 1998, appellant's supervisor, through e-mail, informed
appellant that classification of her position description had been
suspended and the subject position would remain as a military billet.
Based on the foregoing, we find that appellant knew or reasonably
suspected discrimination when she received the February 25, 1988 e-mail.
On appeal, appellant has not presented adequate justification for an
extension of the applicable time limit for contacting an EEO Counselor
pursuant to 29 C.F.R. �1614.105(a)(2). Accordingly, the agency's final
decision is hereby AFFIRMED.
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 (S0993)
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. 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 (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:
August 31, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency was unable to supply a copy of a certified mail return
receipt or any other material capable of establishing the date appellant
received the agency's final decision. Accordingly, since the agency has
failed to fulfill its obligation to transmit its final decision by a
method enabling the agency to show the date of receipt, the Commission
presumes that appellant's appeal was filed within thirty (30) days of
receipt of the agency's final decision. See, 29 C.F.R. �1614.402.