Shirley A. Turnbo, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 14, 1999
01981977 (E.E.O.C. Apr. 14, 1999)

01981977

04-14-1999

Shirley A. Turnbo, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Shirley A. Turnbo v. Department of the Army

01981977

April 14, 1999

Shirley A. Turnbo, )

Appellant, )

)

v. ) Appeal No. 01981977

) Agency No. 9709H0330

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

On January 12, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated December 16, 1997, pertaining

to 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. In her complaint, appellant alleged that she was subjected to

discrimination on the bases of race (African-American), color (Black),

and sex (female) when:

In November 1996, appellant's former supervisor (S1) awarded appellant a

3% performance award while other employees, not in her protected class,

received a 4% performance award;

On unspecified dates, appellant was intentionally and systematically

discriminated against in training opportunities (except when it served

management's needs) and working conditions; and

From 1991 through the first week of January 1995, although appellant

performed the duties of Acting Chief of Contracting, San Francisco

District, she was never given any type of recognition for her work.

The agency dismissed allegations (1) and (3) pursuant to EEOC Regulation

29 C.F.R. �1614.107(b), for failure to initiate contact with an EEO

Counselor in a timely manner, and allegation (2), pursuant to 29

C.F.R. �1614.107(g), for failing to respond to a request for relevant

information pertaining to her complaint. With regard to allegations

(1) and (3), the agency determined that appellant's August 28, 1997

initial EEO Counselor contact occurred more than forty-five (45) days

from the dates on which these incidents took place, and was, therefore,

untimely. The agency further concluded that dismissal of allegation (2)

was justified because appellant failed to meet with the EEO Counselor on

several occasions for the purpose of clarifying and obtaining specific

dates and information, and, upon receipt of a written request for this

information, failed to respond with the requested information.

The Commission notes that the record contains a letter from appellant

dated November 20, 1997, which appellant wrote in response to the agency's

November 6, 1997 request for information. The November 20, 1997 letter

neither identified the specific acts complained of, nor dates on which

these acts allegedly took place. Instead, the letter re-emphasized

appellant's general allegation that she was subjected to "a constructed,

and planned effort to deny [her] the same equal opportunities offered

to others with like qualifications and skills."

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.

In the instant case, the record indicates that although the actions

that were identified in allegations (1) and (3) occurred in November

1996, and from 1991 through the first week of January 1995, appellant

did not initiate contact with an EEO Counselor until August 28, 1997.

Although appellant suggested in her complaint that she sought to resolve

these issues in an informal manner at the lowest possible level, the

Commission repeatedly has held that the initiation of other appeal

processes does not toll the time limit for seeking EEO counseling. See,

e.g., Moye v. Department of the Air Force, EEOC Request No. 05940107

(November 30, 1994) (denial of the appellant's suggestion by higher level

officials following a previous denial of the appellant's suggestion by

lower-level officials); Pappillion v. United States Postal Service,

EEOC Request No. 05931015 (April 28, 1994) (union grievance); Jones

v. Department of Justice, EEOC Request No. 05930909 (March 17, 1994)

(informal attempts to resolve problem); Mathews v. United States Postal

Service, EEOC Request No. 05930887 (January 21, 1994); and Hartsell

v. United States Postal Service, EEOC Request No. 05930428 (July 16, 1993)

(performance appraisal appeal). Accordingly, the Commission finds that

the agency properly dismissed allegations (1) and (3) for untimely EEO

counselor contact.

EEOC Regulation 29 C.F.R. �1614.107(g) provides that an agency shall

dismiss a complaint, or a portion of a complaint, where the agency has

provided the complainant with a written request to provide relevant

information or otherwise proceed with the complaint, and the complainant

has failed to respond to the request within 15 days of its receipt

or the complainant's response does not address the agency's request,

provided that the request included a notice of the proposed dismissal.

Instead of dismissing for failure to cooperate, the complaint may be

adjudicated if sufficient information for that purpose is available.

The Commission has stated that "it is only in cases where the

complainant has engaged in delay or contumacious conduct and the

record is insufficient to permit adjudication that the Commission has

allowed a complaint to be canceled for failure to prosecute/cooperate."

Kroeten v. U.S. Postal Service, EEOC Request No. 05940451 (December 22,

1994) (citation omitted).

We find that the record in this case does not support a finding that

appellant engaged in delay or contumacious conduct with regard to

allegation (2). The record shows that appellant and the EEO Counselor

were on leave for a number of days during the time period in which

clarification meetings were sought. Additionally, although appellant

failed to provide the specific information requested, she did respond

to the agency within the allotted time period. Based on the foregoing,

we find that dismissal of allegation (2) for failure to cooperate was

improper.

However, we remind appellant that EEOC Regulation 29 C.F.R. �1614.106(c)

requires that formal complaints contain a statement which is sufficiently

precise to describe generally the actions or practices that form the

basis of the complaint. Appellant's generalized allegation of being

intentionally and systematically discriminated against in training

opportunities and working conditions is insufficiently precise to

meet this requirement. Therefore, on remand, appellant must provide

a detailed description (including the dates on which they occurred and

the persons responsible) of the specific actions which she alleges were

discriminatory.

Accordingly, the agency's dismissal of allegations (1) and (3) is AFFIRMED

for the reasons set forth herein. The agency's dismissal of allegation

(2) is hereby REVERSED. Allegation (2) is REMANDED to the agency for

further processing in accordance with this decision and the Order below.

ORDER

The agency is ORDERED to take the following actions:

Within fifteen (15) calendar days of the date this decision becomes final,

the agency shall provide appellant a written request for information

identifying the specific actions alleged to have been discriminatory in

allegation (2). The agency shall inform appellant that her failure to

respond with particularity within fifteen days of her receipt of this

notice, shall result in the dismissal of her complaint pursuant to 29

C.F.R. �1614.107(g).

If appellant provides the relevant information identified in paragraph

(1) of this Order, the agency shall within forty-five (45) calendar days

of the date this decision becomes final, issue a notice of processing

and/or new FAD concerning allegation (2).

If appellant fails to respond within the requisite time period, or fails

to identify with particularity the alleged discriminatory actions, the

agency shall issue a new FAD dismissing allegation (2) pursuant to 29

C.F.R. �1614.107(g), for failure to cooperate.

A copy of the agency's notice to appellant requesting information,

the notice of processing and/or new FAD regarding allegation (2) 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 filed your appeal with the

Commission. 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

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations