01A31528_r
07-22-2003
Surjit K. Bhella, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Surjit K. Bhella v. Department of the Navy
01A31528
July 22, 2003
.
Surjit K. Bhella,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A31528
Agency No. 03-45610-001
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated December 16, 2002, 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
On August 9, 2001, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
In her formal complaint, dated October16, 2002, complainant alleged that
she was subjected to discrimination on the bases of race, national origin,
sex, religion, disability, and in reprisal for prior EEO activity when:
a. on or about November 20, 2000, complainant discovered that
PERS 84 and Naval Consolidated Brig Charleston Management Officials
through planned actions, took duties away from her position of record
and systemically added them to the position of a named co-worker, and
non-competitively promoted him to the GS-13 level, through accretion
of duties;
b. on or about April 2001, complainant returned to work after six years
of medical leave and was informed by her supervisor that her position
of record had been eliminated, despite a letter dated April 30, 1997,
indicating that her position had not been eliminated; and
c. on or about May 24, 2001, complainant received a SF-50 dated May
11, 2001, terminating her employment at the Naval Consolidated Brig
Charleston.<1>
The agency dismissed claim (a) pursuant to 29 C.F.R. � 1614.107(a)(1), for
stating the same claim that is pending before or has been decided by the
agency or Commission. The agency dismissed claims (b) and (c) pursuant
to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
Specifically, the agency noted that complainant did not contact an EEO
Counselor until August 9, 2001, which was beyond the forty-five day time
limitation for the matters raised in claims (c) and (c).
Claims (b) and (c)
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.
Regarding claims (b) and (c), we find that complainant had or should
have had a reasonable suspicion of discrimination more than forty-five
days before her August 9, 2001 contact. Complainant has failed to
present adequate justification pursuant to 29 C.F.R. �1614.105(a)(2),
for extending the limitation period beyond forty-five days. Therefore,
the agency's dismissal of claims (b) and (c) for untimely EEO Counselor
contact was proper and is AFFIRMED.
Claim (a)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
Regarding claim (a), the agency determined that complainant had previously
raised the same claim in a prior complaint. Specifically, the agency
determined that complainant pursued this matter with the agency� Human
Resources Office, New Orleans Memphis Service Center, Millington, TN�
and filed a formal complaint on February 29, 2001, and that a decision
was issued on this matter.<2> After a careful review of the record, we
find that the agency failed to include in the record complaints or other
adequate documentation indicating that what was alleged in claim (a) was
the same claim that is pending before or has been decided by the agency
or Commission. Clearly, it is the duty of the agency to have the evidence
or proof to support its final decision. See Marshall v. Department of
the Navy, EEOC Request No. 05910685 (September 6, 1999). Therefore,
we find that the agency improperly dismissed claim (a) on the grounds
that it states the same claim previously decided by the agency.
The agency's decision dismissing claim (a) is REVERSED. This claim is
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claim (claim (a)) in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to the
complainant that it has received the remanded claim 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
July 22, 2003
__________________
Date
1The record reveals that on July 18, 2001,
complainant filed an appeal with the Merit Systems Protection Board
(MSPB) concerning her involuntarily resignation from her position
of record, effective May 4, 2001. On January 18, 2002, the MSPB
dismissed complainant's appeal for lack of jurisdiction (MSPB Docket
No. AT-0752-01-0744-I-1).
2The Commission notes that there is no �February 29, 2001" date as
identified by the agency in its final decision.