01982977
03-18-1999
Mary Ellen A. Roberson, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Services), Agency.
Mary Ellen A. Roberson v. Department of Defense
01982977
March 18, 1999
Mary Ellen A. Roberson, )
Appellant, )
)
v. ) Appeal No. 01982977
) Agency No. DFAS-CO-000S-98-004
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Finance & Accounting )
Services), )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
The final agency decision was dated February 6, 1998. The appeal was
postmarked March 10, 1998. Accordingly, the appeal is timely (see, 29
C.F.R. �1614.402(a))<1>, and is accepted in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to initiate contact with an EEO counselor in a
timely manner.
BACKGROUND
The record indicates that on August 18, 1997, appellant initiated contact
with an EEO Counselor regarding her complaint. Informal efforts to
resolve her concerns were unsuccessful. On November 21, 1997, appellant
filed a formal complaint, alleging that she was the victim of unlawful
employment discrimination on the bases of race (Hispanic), age (DOB -
9/15/46), and in reprisal for previous EEO activities when:
on January 17, 1997, a desk audit resulted in appellant's position
being upgraded to a GS-9 but she remained in a GS-7 pay scale; and
on May 28, 1997, she received a Highly Successful performance evaluation
rating.
In its final decision, the agency defined allegation (1) as whether
appellant was subjected to discrimination when from January 1994 to the
date of this complaint, appellant was not compensated for performing
higher graded work and appellant's position was not upgraded from
GS-334-7 to GS-343-9 for the same. The agency dismissed allegation (1)
for failure to initiate contact with an EEO counselor within 45 days of
the alleged discriminatory matter. Specifically, the agency found that
in a letter dated June 11, 1997, to her Congressman, appellant stated
the same concerns she stated in her formal complaint. Thus, the agency
concluded that as of June 11, 1997, appellant was aware of the alleged
discriminatory matter and failed to contact an EEO counselor in a timely
manner. The agency failed to address allegation (2).
ANALYSIS AND FINDINGS
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
With regard to allegation (1), appellant clearly states in a letter
dated June 11, 1997, to her Congressman, that she believed she was
experiencing discrimination when she was not given a pay increase from
a position upgrade. However, the appellant did not initiate contact
with an EEO counselor until August 18, 1997, more than 45 days after she
became aware of the alleged discriminatory matter. We, therefore, find
that the agency's dismissal of allegation (1) was proper and is AFFIRMED.
The Commission notes that the agency failed to address allegation (2)
concerning appellant's performance evaluation rating, and the Commission
deems the agency's action to be tantamount to a dismissal of that matter.
Appellant's submissions on appeal, as well as her formal complaint reveal
that she clearly raised the matter. Accordingly, the agency's dismissal
of allegation (2) is REVERSED, and that allegation is REMANDED to the
agency for further processing.
CONCLUSION
Accordingly, the agency's decision to dismiss allegation (1) is AFFIRMED
for the reasons set forth herein. The dismissal of allegation (2) is
hereby REVERSED. Allegation (2) is hereby REMANDED to the agency for
further processing in accordance with the Order 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 (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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:
March 18, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations
1The dismissal of a complaint or a portion of a complaint may be
appealed to the Commission within thirty calendar days of the date
of the complainant's receipt of the dismissal or final decision.
See 29 C.F.R. �1614.402(a). Because the agency failed to supply a
copy of the certified mail receipt, accompanied by a date of receipt
or any other material capable of establishing that date, the Commission
presumes that the appeal was filed within thirty calendar days
of the date of appellant's receipt of the final decision.