01982931
04-14-1999
Patricia A. Holmes, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Patricia A. Holmes v. Department of the Navy
01982931
April 14, 1999
Patricia A. Holmes, )
Appellant, )
)
v. ) Appeal No. 01982931
) Agency Nos. 97-68305/0537A-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed the instant appeal from the agency's decision dated
February 10, 1998 dismissing a portion of appellant's complaint
(allegations 7(a) - 7(i)) on the grounds that appellant failed to
timely contact an EEO Counselor. The Commission finds that the agency
properly dismissed allegations 7(a) (appellant excluded from "acting"
assignment in September 1995), 7(b) (appellant's 4 day, 10 hour work
schedule not extended in November 1995), 7(c) (on February 1, 1996
appellant's supervisor attempted to dissuade appellant from pursuing a
workers' compensation claim), 7(d) (on February 6, 1996, appellant's
request for sick leave was denied), 7(f) (in April 1996 appellant's
supervisor refused to recommend appellant for a particular task),
and 7(g) (in December 1996 appellant was informed that appellant's
supervisor attempted to intimidate appellant into leaving the command),
for untimely EEO Counselor contact pursuant to 29 C.F.R. �1614.107(b).
The Commission finds that these allegations are not timely under the
continuing violation theory because appellant should have reasonably
suspected discrimination at the time of these incidents and certainly
more than 45 days prior to her initial contact of an EEO Counselor on
May 14, 1997.
The Commission can not determine from the complaint, the agency's
decision, or the arguments on appeal, the dates of incidents claimed
by appellant in allegations 7(e) (supervisor refused to "sign off" on
paperwork for reinstatement of leave), 7(h) (appellant's supervisor
never publicly nominated and publicly announced that appellant was
acting in the position of the supervisor until May 12, 1997), and 7(i)
(supervisor continually interrupted and corrected appellant in front of
appellant's staff and colleagues). The agency has not claimed that it
contacted appellant in an attempt to clarify the dates of the incidents in
allegations 7(e), 7(h), and 7(i). Therefore, we shall remand allegations
7(e), 7(h), and 7(i), so that the agency may contact appellant to clarify
the dates of the incidents in these three allegations. After clarifying
the dates the agency shall redetermine whether appellant timely contacted
an EEO Counselor.
The agency's decision dismissing allegations 7(a) - 7(d), 7(f), and 7(g)
is AFFIRMED. The agency's decision dismissing allegations 7(e), 7(h),
and 7(i) is VACATED and we REMAND allegations 7(e), 7(h), and 7(i) to
the agency for further processing in accordance with this decision and
applicable regulations.
ORDER
The agency shall send a letter to appellant requesting clarification of
the dates of incidents for allegations 7(e), 7(h), and 7(i). Thereafter
the agency shall reconsider whether allegations 7(e), 7(h), and 7(i)
should be dismissed for untimely EEO Counselor contact pursuant to 29
C.F.R. �1614.107(b). Within 60 days of the date this decision becomes
final the agency shall issue a letter to appellant accepting the remanded
allegations for investigation and/or issue a new decision dismissing
the remanded allegations. A copy of the agency's letter accepting the
remanded allegations and/or a copy of the agency's new decision dismissing
the allegations must be sent to the Compliance Officer referenced herein.
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. �l6l4.604(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:
April 14, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations