01975262
02-24-1999
Pamela D. Gamache, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Pamela D. Gamache v. Department of the Navy
01975262
February 24, 1999
Pamela D. Gamache, )
Appellant, )
)
v. ) Appeal No. 01975262
) Agency No. DON95-62467-016
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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, as amended (ADEA), 29 U.S.C. �621 et seq. The final agency decision
was issued on May 21, 1997. The appeal was postmarked June 20, 1997.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The record reflects that appellant is an agency employee in the agency's
Design Division, which is designated as "Code 4." On March 9, 1995,
appellant initiated contact with an EEO Counselor. Informal efforts to
resolve her concerns were unsuccessful.
On April 27, 1995, appellant filed a formal complaint, alleging that
she was the victim of unlawful employment discrimination on the bases
of age and reprisal.
On June 22, 1995, the agency issued a final decision. Therein, the agency
determined that appellant's complaint was comprised of three allegations,
that were identified in the following fashion:
1. Appellant was discriminated against . . . when she was not selected
for the position of Program Assistant, GS-7 (February 1995).
2. Non-selection for the position of Program Assistant, GS-7, from a
prior recruitment dated November 1994.
3. Appellant's position was abolished and appellant expressed her
resentment of performing the duties of two positions to management in
October 1993.
The agency accepted allegation 1 for investigation, and dismissed
allegations 2 and 3 on the grounds that appellant failed to initiate
contact with an EEO Counselor in a timely fashion.
In a prior appeal, regarding allegation 2, appellant argued that "the
November 1994 position selection had to have been part of the Code 07
reorganization. . . " Appellant also made the following statement:
If the Code 03 position selection was not part of the Code 07
reorganization, why was the position not filled from the stopper list or
how did the Command get by with two reorganizations when the final one
was known at the time? My time does not start until I have knowledge of
this action and I did not have knowledge until the new Code 07 positions
were announced on February 15, 1995. I was not made aware of Command
policies until this time.
In response, the agency explained that the selection at issue in
allegation 2 was effective November 27, 1994, and that the announcement
number for the selection was #N5007.
The Commission found that with regard to allegation 2, appellant admitted
on appeal that the non-selection at issue occurred in November 1994.
The Commission further found, however, that appellant may have argued that
she did not discover the non-selection, or some impropriety relating to
the non-selection, until February 15, 1995. The Commission stated that
the record contained no evidence showing when appellant was informed
of her non-selection. The agency reversed the agency's decision to
dismiss allegation 2 for failure to timely contact an EEO Counselor and
remanded the allegation to the agency for a supplemental investigation.
The agency was ordered to supplement the record with evidence showing
when appellant was informed of her non-selection for the position at
issue in allegation 2; and when she should have reasonably suspected
that she was discriminated against by her non-selection for the position.
Regarding allegation 3, the Commission affirmed the agency's decision
to dismiss a portion of the allegation; and reversed the decision to
dismiss the remaining portion of allegation 3 and remanded it to the
agency for further processing. Gamache v. Department of the Navy,
EEOC Appeal No. 01955568 (July 18, 1996).
On May 21, 1997, the agency issued the final decision that is the
subject of the instant appeal. Therein, the agency accepted for
investigation the portions of allegation 3 remanded by the Commission in
its decision of July 18, 1996. The agency dismissed allegation 2 for
failure to initiate contact with an EEO Counselor in a timely fashion.
Specifically, the agency found that the issuance of a Certificate of
Eligibles and a Job Recruitment Announcement for the position identified
in allegation 2, reflects that appellant should have been aware of the
area of consideration restrictions by November 10, 1994. The agency
determined that appellant's initial EEO Counselor contact in March 1995,
was four months after she had or should have had a reasonable suspicion
of unlawful employment discrimination regarding the matter addressed in
allegation 2.
The agency also dismissed allegation 2 on the alternative grounds
of failure to state a claim. Specifically, the agency found that
appellant did not apply for the Program Assistant position identified in
allegation 2. The agency noted that recruitment for this position was
restricted in the area of consideration and that, therefore, appellant
"was not allowed to apply for this position."
On appeal, appellant argues that the recruitment for the position
identified in allegation 2 was restricted to Code 3 employees, and that
the announcement for the position was distributed solely to five employees
within Code 3 and was not distributed Command-wide. Appellant further
argues that the restriction of an area of consideration for recruitment
to one department, such as to Code 3, is authorized when a department
is under reorganization, but that Code 3 was not under reorganization.
Appellant further argues that the position identified in allegation 2 was
authorized because of the organization of another department (Code 7) on
February 15, 1995, and was not attributable to a reorganization of Code 3,
as she had earlier assumed. Appellant argues that she did not develop a
reasonable suspicion of unlawful employment discrimination until February
15, 1995, when she purportedly "was made aware of command policies."
In response, the agency argues that on or about November 3, 1994, the
position identified in allegation 2 was advertised; and that pursuant
to applicable agency policy, a determination was made that there was
a sufficient number of high quality candidates for the position within
Code 3. The agency notes that Code 3 was a candidate for reorganization
at the time the subject position was advertised in November 1994.
The agency further notes that at all relevant times, appellant was
assigned to Code 4 and was not within the area of consideration for
the position. The agency argues that the area of consideration for
the position addressed in allegation 2 was properly defined; that
the announcement for the position was opened on November 3, 1994, and
closed on November 10, 1994; and that, therefore, the personnel action
complained of occurred on November 10, 1994, at the latest. The agency
argues that appellant's initial EEO Counselor contact on March 9, 1995,
was approximately four months after the alleged discriminatory incident
occurred.
Regarding appellant's argument on appeal, the agency argues that her
assertion that the subject position was authorized by the organization
of Code 7 is incorrect. The agency argues that during the fall of 1994,
agency management considered various options of reorganization which
included the option of merging Code 3 and Code 4 into a new "Code 7"
and that such a merger was approved on or about February 1995, well
after the filling of the position addressed in allegation 2.
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 limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
A fair reading of the record in this case reflects that appellant
argues that she only developed a reasonable suspicion of unlawful
employment discrimination with regard to the position addressed in
allegation 2 upon learning in February 1995, that this position was not
the subject of an agency reorganization (of Code 3) but was instead the
subject of an organization of an entirely new Code (Code 7). We find
too attenuated appellant's argument that a reasonable suspicion was
predicated upon learning that the subject position was the subject of a
new Code organization, as opposed to a reorganization of an existing Code.
Appellant did not identify how this information rendered her nonselection
discriminatory. Appellant has failed to present adequate justification
pursuant to 29 C.F.R. �1614.105(a)(2), for extending the limitation period
beyond forty-five days. Accordingly, the agency's decision to dismiss
allegation 2 for failure to initiate contact with an EEO Counselor in
a timely fashion was proper and is AFFIRMED.
Because we affirm the agency's decision to dismiss allegation 2 for the
reason stated herein, we find it unnecessary to address the agency's
decision to dismiss allegation 2 on alternative grounds.
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:
Feb 24, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations