01990047_r
05-11-2001
Barbara C. Horne, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Barbara C. Horne v. Department of the Navy
01990047
May 11, 2001
.
Barbara C. Horne,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01990047
Agency No. DON (MC) 98-67004-017
DECISION
Complainant filed an appeal with this Commission from an agency decision
regarding 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.
On May 31, 1998, complainant contacted the EEO office claiming that she
was subjected to discriminatory harassment from December 1996 through
October 1997. Informal efforts to resolve complainant's concerns were
unsuccessful. On July 27, 1998, she filed a formal complaint based on
reprisal for prior protected activity.
On August 24, 1998, the agency issued a decision dismissing without
elaboration the complaint on the grounds that complainant failed to
timely contact an EEO Counselor.
On appeal, complainant argues that she contacted the EEO office in
September 1997 regarding harassment that purportedly occurred between
February and August 1997; and that later that month, she spoke with the
Base Division Director regarding a reassignment to his group. Complainant
states that when she went to the personnel office to implement the
transfer, she was advised by her EEO Counselor that management would not
authorize the reassignment unless she withdrew her September 1997 informal
complaint. Complainant argues that although she perceived the offer to
be coercive, she nevertheless agreed to withdraw the matter as long as
a separate complaint, then under investigation, would not be affected.
Complainant asserts that in May 1998, the Administrative Judge (AJ)
hearing her separate complaint discussed above, notified her that none
of the actions that occurred after December 1996 could be considered
with that complaint. Complainant argues that immediately upon learning
of the AJ's notification, she went to the EEO office on May 28, 1998,
the date construed as the initial EEO contact date by the agency for
the matter raised in the instant complaint.
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.
Here, complainant argues that she first contacted an EEO Counselor
in September 1997. This earlier contact is confirmed by an unsigned
statement from Counselor AA, obtained during an inquiry by the EEO
Counselor whom complainant contacted in May 1998 (hereinafter �Counselor
B�). Counselor AA's statement corroborates complainant's assertion
on appeal that she was required to withdraw her informal complaint of
reprisal that was pursued in September 1997. According to Counselor
AA, he was assigned as complainant's EEO Counselor in September 1997,
and they discussed actions of alleged reprisal by her supervisor and
the abolishment of her section. Counselor AA states that he suggested
speaking with a department director regarding a possible reassignment
for complainant, and complainant agreed. Subsequently, the parties
decided that complainant would be reassigned to an agency department
identified as �G6.� Counselor AA explained that when the reassignment
was to be implemented, he informed complainant that �management would not
approve her reassignment unless she agreed to withdraw her complaint of
reprisal....� Complainant agreed, as long as her �current EEO complaint�
(the complaint that was the subject of the AJ notification discussed
above) would not be impacted.
Based on a thorough review of the record, we find that while complainant
contacted the EEO office in September 1997, she subsequently withdrew
the matter from counseling. We are not persuaded by complainant's
assertions that she believed the later matters, occurring between
December 1996 and October 1997, could be considered with the separate
complaint pending before the AJ. Because complainant has not provided
sufficient justification for tolling or extending the time limit for
contacting an EEO Counselor, the Commission finds that the agency's
dismissal was proper. Complainant's initial EEO contact, in May 1998,
was more than 45 days after the alleged incidents raised in the instant
complaint. Accordingly, the agency's decision to dismiss the complaint
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
May 11, 2001
__________________
Date