01a33638
06-23-2004
Shawn West, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Shawn West v. Department of the Army
01A33638
6/23/2004
.
Shawn West,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A33638
Agency No. ARLEWIS03MAR0043
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 25, 2003, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
On March 19, 2003, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful. In her
formal complaint, filed on April 23, 2003, complainant alleged that she
was subjected to discrimination in reprisal for prior EEO activity.
In its final decision dated April 25, 2003, the agency determined that
complainant's formal complaint was comprised of the following three
claims:
1. [Complainant] signed [her] performance appraisal on [January
15, 2003] for the rating period [September 28, 2001-September 22,
2002]. [Complainant] allege[s] [that she] received a lower rating
(success) on element # 3.
2. [Complainant] allege[s] [that] statements were written by [her]
co-workers at the request of management regarding an incident that
occurred in February 2003.
3. [Complainant] allege[s] [that she] was denied the opportunity to
mentor childcare staff.
The agency dismissed claim (1) for untimely EEO Counselor contact.
Additionally, the agency dismissed claims (2) and (3) for failure to
state a claim.
On appeal, complainant asserts that the agency improperly dismissed
her complaint. Regarding claim (1), the performance appraisal rating,
complainant reiterates that the rating was unfair and was based on
reprisal. Regarding claim (3), complainant adds color as an additional
basis of discrimination. In addition, complainant, on appeal, states
that she has been subjected to racial comments by a co-worker.
In response, the agency states that it properly dismissed complainant's
complaint. Regarding claim (1) the agency reiterates that complainant
contacted an EEO Counselor more than forty-five days after signing her
performance appraisal. Regarding claim (2), the agency states that
no adverse action was taken against complainant based on the statement
complainant's supervisor received from one of complainant's co-workers.
Regarding claim (3), the agency asserts that complainant has failed to
establish a prima facie case of discrimination.
Claim 1-Performance Appraisal
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). 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.
The Commission finds that the agency properly dismissed claim (1) for
untimely EEO Counselor contact. The record reflects that complainant
received the performance appraisal at issue on January 10, 2003, and
signed it on January 15, 2003. The Commission finds that complainant
should have reasonably suspected discrimination regarding her performance
appraisal rating when she received it on January 10, 2003. The record
reflects that complainant initiated EEO Counselor contact on March
19, 2003, outside of the applicable time limit. The Commission finds
that complainant fails to present adequate justification to warrant an
extension of the applicable time limit for contacting an EEO Counselor.
Claims (2)-(3) Statements from Co-workers and Denial of Mentoring
Opportunity
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
The Commission finds that the agency properly dismissed claim (2) for
failure to state a claim. A review of the EEO Counselor's Report and
formal complaint indicate that complainant alleges that management asked
agency employees to write statements regarding complainant's alleged
involvement in a workplace incident that occurred in February 2003.
The Commission does not find complainant to be aggrieved because
complainant does not allege that she received any discipline or that
she suffered personal harm to a term, condition, or privilege of her
employment based on these statements. In addition, the Commission
determines that claim (2) is insufficient to state a claim of harassment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
The Commission finds that the agency improperly dismissed claim (3) for
failure to state a claim. On appeal, complainant asserts that claim
(3) involves being denied the opportunity to serve as an advisor for
an agency employee obtaining her Child Development Associate, a form
of credentialing. The Commission notes that complainant, on appeal,
also raises the additional basis of color in regard to claim (3).
The Commission has held that complainants may raise additional bases of
discrimination during complaint processing. See Webb v. Department of
Veterans Affairs, EEOC Request No. 05940494 (May 18, 1995). The agency's
assertion that complainant failed to establish a prima facie case of
discrimination is irrelevant to whether claim (3) states a cognizable
claim.
The only questions for an agency to consider in determining whether a
complaint states a claim are: (1) whether the complainant is an aggrieved
employee and (2) whether complainant raises employment discrimination
on a basis covered by EEO statutes. If these questions are answered
in the affirmative, an agency must accept the complaint for processing
regardless of its judgment of the complaint's merits. See Odoski
v. Department of Energy, EEOC Appeal No. 01901496 (April 16, 1990).
The Commission finds that claim (3) states a claim because complainant
claims that she was denied a professional opportunity due to a basis or
bases of discrimination within the Commission's regulations.
Regarding complainant's claim, on appeal, that she has been subjected
to racial comments by a co-worker, it is inappropriate for complainant
to raise a claim for the first time as part of her May 2003 appeal.
Accordingly, the agency's decision dismissing claims (1) - (2)
is AFFIRMED. However, the agency's decision dismissing claim (3) is
REVERSED and that matter is REMANDED to the agency for further processing
in accordance with the Order below and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
6/23/2004
Date