01981977_r
04-14-1999
Shirley A. Turnbo, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
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