01976951
11-10-1998
Margaret Powell, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Margaret Powell v. Department of Transportation
01976951
November 10, 1998
Margaret Powell, )
Appellant, )
)
v. ) Appeal No. 01976951
) Agency No. 2-97-2110
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated August 15, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The appellant alleged in her June 26, 1997 complaint that the agency
discriminated against her based on her race, color, sex, age and physical
disability by the following actions and failures to act: (1) requiring
her to perform the duties of the Manager, Historical Black Colleges &
University Program (HBCU), position beginning January 1, 1995, without
officially assigning her to the position and providing her with a position
description; (2) continuously failing to provide the appellant with
an official performance plan with performance objectives and standards;
(3) failing to provide the appellant with annual performance ratings; (4)
failing to have the appellant report at a level comparable to employees
with similar program responsibilities; (5) requiring her to work for
FM-15 pay while others in similarly situated positions were paid at the
FM-15 level; and (6) treating her differently than similarly situated
employees, e.g., by instructing her to allow others to copy her work,
and by rebuking her based on unsubstantiated allegations without an
investigation.
The agency dismissed the appellant's complaint on the ground that her
receipt of EEO counseling on June 17, 1997 was untimely. The decision
found that the appellant knew for a year and a half prior to receiving
counseling that she had not been officially appointed to the HBCU Manager
position, that she had not received an official performance plan with
performance standards, and that she had not received a performance rating
for the period. The decision concluded that, therefore, for a year and
a half the appellant had a reasonable suspicion that discrimination may
have been the cause for her not being officially appointed to the HBCU
Manager position. The decision further found that the appellant had not
presented adequate justification for extending the limitation period.
After a review of the record, including the appeal submissions of the
parties, the Commission finds that the agency erred when it dismissed
the appellant's complaint for untimely EEO counselor contact.
According to the EEO Counselor's Report, the appellant requested
counseling on May 20, 1997. That date, rather than the date the appellant
first received counseling, is the governing date for determining whether
the appellant timely sought EEO counseling. Otherwise, an agency could
render any complaint untimely merely by delaying the starting date of
the counseling. Thus, a discriminatory action or practice which occurred
on or after April 5, 1997, or continued into the 45-calendar day period
which preceded the appellant's May 20, 1997 counseling request should
be deemed timely.
According to the EEO Counselor's Report, the agency continued to
require that the appellant perform the HBCU Program Manager duties
without officially assigning the appellant to the HBCU Program Manager
position and providing her with a position description and official
performance plan with performance objectives. Thus, these allegedly
discriminatory working conditions continued into the counseling period.
Accordingly, the Commission finds that the appellant's counseling request
was timely regarding allegations 1 and 2. The Commission also finds
that the appellant's performance appraisal allegation is inextricably
intertwined with her performance standards allegation. Therefore, the
Commission finds that the appellant timely sought counseling with regard
to allegation 3. The EEO Counselor's Report indicates that the results
of a desk audit on the appellant's position were received on April 14,
1997, finding that the appellant's position was properly graded at the
GS-14 level. Accordingly, the Commission finds that the appellant timely
sought EEO counseling regarding allegation 5.
The record does not establish any dates for the alleged disparate
treatment identified in allegations 4 and 6. However, it appears that
at least one form of the alleged disparate treatment, i.e., the level
at which the appellant was required to report, continued without change
into the 45-day period preceding the appellant's counseling request.
Therefore, the Commission finds that the appellant timely sought
counseling regarding allegations 4 and 6.
In finding allegations 1 through 4 and allegation 6 timely, the Commission
notes that there is no indication in the record that the agency had ever
informed the appellant that it had decided not to officially reassign
her to the HBCU Program Manager position, to provide her with performance
standards, etc.
CONCLUSION
For the reasons stated above, the Commission REVERSES the agency's
dismissal of the appellant's complaint and REMANDS the complaint for
processing as ORDERED below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
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. 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. 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 (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:
November 10, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations