01a23960
09-17-2003
Sherrell M. Garth, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Sherrell M. Garth v. Department of the Army
01A23960
September 17, 2003
.
Sherrell M. Garth,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A23960
Agency No. BXJDCL-99-05J0020
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated June 6, 2002, which dismissed her complaint of
unlawful employment discrimination brought pursuant to Title VII of
the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C. � 2000e
et seq.
Complainant contacted an EEO Counselor on March 29, 1999, seeking to
pursue a class complaint on behalf of black employees at the agency's
Family Services Division, concerning six discrimination claims.
When counseling was not successful, complainant, as class agent, filed a
formal complaint, which the agency transferred to an EEOC Administrative
Judge (AJ) for a decision on the issue of class certification.
On February 27, 2001, the AJ issued a decision denying class certification
due to failure to satisfy the applicable regulatory requirements, and
ordered the agency to process complainant's individual discrimination
complaint. On March 21, 2001, the agency issued a final decision
notifying complainant that the class complaint would be accepted
and processed as an individual complaint. However, in a decision on
December 10, 2001, the agency amended its March 21, 2001 determination,
and instead notified complainant that the complaint would be sent to a
certain EEO office to ascertain whether or not to accept the individual
complaint for processing.
In her individual complaint, complainant claims discrimination on the
bases of race (African-American) and sex (female) as follows:
Complainant and four co-workers were terminated or forced to resign
under duress;
Management solicited false statements from co-workers for the purpose
of supporting its decision to terminate complainant;
Management impeded the settlement of complainant's prior complaint;
Management failed to investigate alleged discriminatory practices;
Management engaged in discriminatory hiring practices; and
The servicing EEO Officer refused to process a class complaint brought
to his attention by complainant in June 1998.
In its June 6, 2002 final decision that is the subject of the instant
appeal, the agency first dismissed the entire complaint on the grounds of
untimely EEO Counselor contact. Specifically, the agency found that all
of the identified discriminatory incidents occurred during complainant's
employment, which terminated in June 1998, such that her EEO Counselor
contact on March 29, 1999, was beyond the 45-day period. The agency
also found that complainant had constructive knowledge of the time limit
because of prior EEO activity. Alternatively, the agency dismissed the
entire complaint for failure to state a claim, finding that none of the
alleged incidents resulted in a present tangible harm to complainant.
Next, in addressing the claims individually, the agency dismissed claim
2 on the grounds that it was identical to a claim raised in a prior EEO
complaint. Specifically, the agency found that complainant previously
filed an EEO complaint on August 18, 1998, claiming discriminatory
termination, and that in support of this claim, she specifically contended
that the agency solicited negative and false accusations about her.
The agency further determined that this prior complaint had been the
subject of an agency final decision finding no discrimination, as
well as a decision by the Commission in Garth v. Department of Army,
EEOC Appeal No. 01A01854 (January 17, 2001).
Regarding claim 6, the agency dismissed this claim on the grounds of
mootness, based on findings that complainant was terminated in June 1998,
and that her class complaint was ultimately processed by the agency.
Based on these findings, the agency furthered determined that even
if it were true that an EEO Counselor refused to process it for her,
there is no reasonable expectation that such a violation would recur,
and that interim events eradicated the effects of the alleged violation.
On appeal, in pertinent part, complainant argues that the complaint should
not be dismissed as untimely, given that complainant originally contacted
an EEO Counselor on June 8, 1998, mere days after her termination.
Complainant also argues that dismissal on the grounds of failure to state
a claim is improper, because her termination resulted in lost wages,
being stranded in Germany, other economic losses, and emotional distress.
Additionally, complainant avers that claim 5 goes to the heart of Title
VII, and avers that claims 3 and 4, at this stage, must be accepted
as true for complainant to be able to invoke Title VII protections.
Regarding the dismissal of claim 2, complainant argues that because this
matter was not fully addressed on the merits in the previous complaint,
it cannot be dismissed. Complainant concedes that the agency properly
adjudicated claim 6 as moot.<1>
In response, the agency disputes complainant's appeal contentions, and
elaborates on the findings set forth in its final decision, requesting
that the Commission affirm its dismissal. In reply, complainant charges
that the agency fragmented her claim, and processed it in a piecemeal
fashion, robbing her of an opportunity to have her termination claim
fully and fairly adjudicated on the merits.
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 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.
Review of Commission records confirm that complainant contacted an EEO
Counselor on June 8, 1998, and again on October 7, 1998, which resulted
in the filing of two formal complaints alleging unlawful employment
termination, as well as certain acts of reprisal. As reflected
above, these two complaints (agency Complaint Nos. BXJDFO-98-101870
and BXJDFO-98-101910) were fully adjudicated by the agency, and the
Commission dismissed the appeal because of a late filing. See Garth,
supra. Subsequently, complainant again initiated EEO Counselor contact on
March 29, 2001, for the purpose of initiating a class action complaint,
again raising her own June 1998 termination, as well as other incidents,
all which occurred prior to her termination.
Based on these findings, we conclude that the agency properly dismissed
the entire complaint on the grounds of untimely EEO Counselor contact.
Specifically, we that the record confirms that all incidents in question
clearly occurred on or before the date of complainant's termination,
and so beyond the 45-day limitation period with respect to complainant's
EEO Counselor contact on March 29, 1999.
Finally, while we concur with the agency's determination that multiple
other grounds for dismissal of the complaint and/or individual claims are
applicable, given the above determination, we do not address them herein.
Conclusion
For the reasons set forth above, we AFFIRM the agency's dismissal of
the captioned complaint on the grounds of untimely EEO Counselor contact.
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 (S0900)
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. 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
September 17, 2003
__________________
Date
1Because the parties do not dispute that
the dismissal of claim 6 was improper, we shall not further address
it herein.