0520070507
08-10-2007
Mary F. McCullough, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Mary F. McCullough,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Request No. 0520070507
Appeal No. 0120071500
Agency No. HS 06-ICE-003726
DENIAL
The agency timely requested reconsideration of the decision in Mary
F. McCullough v. Department of Homeland Security (Immigration), EEOC
Appeal No. 0120071500 (April 9, 2007). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant filed an EEO complaint alleging that she was subjected to
discrimination based on her disability, age and reprisal for prior EEO
activity when:
1. she was tricked and deceived into retiring effective June 24, 2006,
from her position of Administrative Assistant in the Denver Office of
the Chief Counsel,1 and
2. on August 16, 2006, she learned that her previous position with the
agency was being advertised as a Mission Support Specialist, GS-9/11,
although she had previously informed that the position was only going
to be announced at the GS-11 level.
The final agency decision (FAD) dismissed claim 1 on the grounds that
complainant failed to timely initiate contact with an EEO counselor,
and dismissed claim 2 to for failure to state a claim.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1). Under 29 C.F.R. � 1614.105(a)(2), an agency shall extend
the 45 day time limit to initiate EEO counseling where an individual shows
that he was not notified of the time limit and was not otherwise aware
of it. Further, the time limit to seek EEO counseling shall be extended
when an individual shows he did not know and reasonably should not
have known that the discriminatory action or personnel action occurred.
29 C.F.R. � 1614.105(a)(2). 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.
In dismissing claim 1, the FAD found that complainant retired effective
June 24, 2006, but did not seek EEO counseling until August 23, 2006,
beyond the 45 day time limit. It found that while complainant contended
that she was not aware of the time limit to seek EEO counseling, she took
an online EEO course in August 2004 that contained information about
the time limit. It also found that she had a reasonable suspicion of
discrimination more than 45 calendar days prior to initiating contact
with an EEO counselor.
The previous decision affirmed the FAD's dismissal of claim 2.
It reversed the FAD's dismissal of claim 1. It reasoned that while
the FAD recounted that complainant took EEO training, the record had
no documentation that the training contained information regarding the
time limit for initiating timely EEO counselor contact. Accordingly,
the previous decision reversed the agency's dismissal of claim 1.
The agency requests that the Commission reconsider the previous decision's
ruling on claim 1. On request, the agency states that on appeal,
it submitted a reply brief which included documentation complainant
was notified of the 45 calendar day time limit in a training course,
and it believes that the Commission did not timely file the brief and
it was not read. The reply brief also argued that complainant had a
reasonable suspicion of discrimination more than 45 calendar days prior
to initiating contact with an EEO counselor. In response to the agency's
request, complainant argues that the agency's request for reconsideration
should be denied. She does not ask that the previous decision reconsider
its ruling on claim 2. Accordingly, we will only address claim 1.
A review of the file reveals that by mail postmarked April 2, 2007, the
agency timely replied to complainant's appeal brief dated February 27,
2007, which she mailed to the agency that day. The reply brief was not
electronically filed until April 12, 2007, after the date the previous
decision was issued. As the agency's reply brief was timely, we will
consider it here. Documentation submitted with the brief shows that on
August 4, 2004, complainant completed training entitled "EEO Complaints
Process Training for Employees (2003)" which had screen shots advising
of the 45 day time limit to initiate contact with an EEO counselor.
Accordingly, we find complainant had actual or constructive knowledge
of the 45 day time limit to initiate EEO contact.
The previous decision did not rule on complainant's contention that
the time limit should be extended because she did not have a reasonable
suspicion of discrimination until August 16, 2006. We will do so here.
Complainant, who was a GS-8, contended throughout her case that she
was tricked into retiring. By April 2006, the agency was considering
upgrading complainant's position to a GS-9/11, or creating and
competitively announcing the same and/or similar job in the same office
to which complainant would be eligible to apply. Complainant was aware
that a possible upgrade in some form was being considered. She contended
that she was weighing retiring for a variety of reasons, but decided that
if her job was going to become a GS-9/11, she would stay on more years to
increase her pension. Complainant averred she advised her supervisor, the
Chief Counsel of this. Complainant has emphatically claimed throughout
her case that in deciding whether to retire, she repeatedly asked her
supervisor if her job would be upgraded to a GS-9/11, and her supervisor
continually responded that the job would become a GS-9, not GS-9/11.
Complainant alleges that relying on the supervisor's representation,
she decided it was not financially worth while to continue working,
and retired. There is some information in the counselor's report that
the supervisor may have known that a GS-9/11 level was still being
considered. On August 7, 2006, complainant's former job, or one like
it, was competitively announced at the GS-9/11 level, and complainant
learned of the announcement on August 16, 2006.
Complainant contends that the supervisor, knowing she would continue
working if she could get a GS-9/11, tricked and deceived her into
believing she would only get a GS-9 so she would retire. Complainant
alleges the supervisor was motivated by discrimination and retaliation. As
complainant did not learn of the alleged deceit and trickery until August
16, 2006, we find that complainant timely initiated contact with an EEO
counselor on August 23, 2006. Accordingly, the agency's request for
reconsideration is denied.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120071500, as modified
herein, remains the Commission's final decision. There is no further
right of administrative appeal on the decision of the Commission on
this request. The agency shall comply with the Order as set forth below.
ORDER (E0900)
The agency is ordered to process the remanded claim2 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0900)
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 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. 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
August 10, 2007
__________________
Date
1 The agency defined claim 1 as complainant being constructively
discharged effective June 24, 2006. However, a reading of complainant
and counselor's report shows that the definition listed above better
captures the claim.
2 The remanded claim is whether complainant was tricked and deceived into
retiring effective June 24, 2006, from her position of Administrative
Assistant in the Denver Office of the Chief Counsel.
??
??
??
??
2
0520070507
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0520070507