01991170
04-18-2001
Barbara A. Harris, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Barbara A. Harris v. Department of the Navy
01991170
April 18, 2001
.
Barbara A. Harris,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01991170
Agency No. DON 98-42237-006
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to 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. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
According to the Counselor's Report, complainant contacted the EEO office
on July 13, 1998 regarding claims of a hostile work environment and
management's failure to respond to her complaints. Complainant claimed
that the alleged discrimination occurred from 1992 through February 1998.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint based on race and sex.
On October 29, 1998, the agency issued a decision dismissing the
complaint for untimely counselor contact. The agency reasoned that
while complainant indicated that the allegedly discriminatory events
occurred between 1992 and February 1998, it was not until July 13,
1998, when her attorney wrote to the EEO Office, that contact was made.
According to the agency, neither complainant nor her attorney offered
any reason for the delayed contact.
On appeal, complainant, through her attorney, argues that contact
was made on the same date as the last incident, February 6, 1998.
Complainant asserts that on that day she sent an e-mail to the Captain
of the Naval Submarine Base, the Director of the EEO office, and others,
regarding derogatory comments made by co-workers and the posting of black
history month posters. Complainant states that the e-mail resulted in a
meeting, which included the captain and EEO Director, and was followed
by a meeting with an EEO Counselor. Lastly, complainant notes that
after the February 1998 incident she was forced to take medical leave.
Therefore, complainant argues, that even if she had not been timely �she
would certainly have a valid excuse, given the state of her mental and
emotional condition.�
In response, the agency argues that complainant was aware of the time
limits because she has filed numerous EEO complaints since 1990 and EEO
posters were on display. With respect to the February 6, 1998 e-mail,
the agency asserts that the message was sent to several individuals
and the EEO office was not contacted with the purpose of filing an EEO
complaint. The agency also disputes complainant's belief that the EEO
Manager referred the e-mail to the EEO Counselor. A meeting was simply
held in an attempt to resolve the dispute. The agency contends that
complainant never expressed a desire to file an EEO complaint, but rather,
was asking management to resolve the issue. Regarding complainant's
health, the agency noted that she was at work until February 28, 1998,
approximately eighteen days after the most recent event, and did not
contact the EEO office. Moreover, the agency noted that complainant was
at work on two other occasions, between February 24 and March 9, 1998,
and did not initiate contact with an EEO Counselor.
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.
To satisfy the forty-five day contact requirement, the Commission has
consistently required complainants to contact an EEO Counselor or official
logically connected with the EEO process, and �exhibit an intent to being
the EEO process.� EEOC Management Directive (MD-110), 2-1 (November 9,
1999); see Washington v. Government Printing Office, Request No. 05970523
(Jan. 19, 1999)(expressing belief that discrimination occurred, without
exhibiting intent to file a complaint, did not constitute counselor
contact for time limitation purposes).
Here, the record contains a copy of the February 6, 1998 e-mail, which
was sent to several individuals connected with management, the union,
and the EEO office. In the e-mail, complainant described an incident
where co-workers were exchanging negative comments about Black History
Month events. Complainant explained that she was �currently in an ongoing
grievance situation about being treated different from my coworkers and
about racist remarks being said to me....Now who can I speak to that
can make something happen about these comments?� We do not find that
the complainant exhibited the requisite intent to begin the EEO process
at the time of the February 1998 e-mail. Moreover, given complainant's
prior experience with the EEO process, we find that she was aware of
the forty-five-day time limitation.
With respect to complainant's contentions that her health prevented her
from timely contacting the EEO office, we disagree. We have consistently
held, in cases involving physical or mental health difficulties, that
an extension is warranted only where an individual is so incapacitated
by his condition that he is unable to meet the regulatory time limits.
See Davis v. United States Postal Service, EEOC Request No. 05980475
(August 6, 1998); Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29, 1992). While complainant refers to post
traumatic stress disorder and her inability to return to work, the record
does not establish that she was so incapacitated that she was unable to
contact the EEO office in a timely manner.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 18, 2001
__________________
Date