01a40402
04-12-2004
Doris A. Richardson, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Doris A. Richardson v. Department of the Navy
01A40402
April 12, 2004
.
Doris A. Richardson,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A40402
Agency No. 0362980001
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision 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.
On February 5, 2003, complainant contacted the EEO office. Informal
efforts to resolve complainant's concerns were unsuccessful.
On May 21, 2003, complainant filed a formal complaint. Therein,
complainant claimed that she was subjected to discrimination on the
bases of race and sex when she was removed from a detail position
and not promoted to the GS-6 level. According to the EEO Counselor's
Report, complainant claimed that on June 3, 2002, she accepted a detail
position on the Data Management Brand, after being told by a named
manager that she could be promoted to the G-6 level very soon if she
accepted the detail. Complainant stated that she was not promoted,
and that on September 30, 2002, she was informed that she would be
returned to her previous workplace with no chance to advance to the
GS-6 level. Complainant stated that she learned on or about October 1,
2002, that a white male replaced her in her previous position in the
Data Management Brand, with a GS-9 level.
The EEO Counselor Report also indicates that when the EEO Counselor
requested that complainant provide an explanation for not contacting
an EEO Counselor until February 5, 2003, complainant stated that she
was unaware of the applicable time period for contacting an EEO Counselor.
In its final decision dated September 30, 2003, the agency dismissed
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for
untimely EEO Counselor contact. The agency determined that the alleged
discriminatory action occurred on October 1, 2002, but that complainant
did not contact an EEO Counselor until February 5, 2003, which is beyond
the requisite 45 days.
In response to complainant's contention that she was unaware of the
deadlines, the agency determined that complainant participated in EEO
training on June 20, 2002, where the EEO complaint process was discussed,
and that complainant previously participated in the EEO complaint
process. Additionally, the agency argues that posters addressing the time
limitation periods are posted throughout the facility where complainant
was employed. In support of this argument, the agency submits a recent
EEO poster from the facility as an example of the type of posters that had
been on display. The poster states that a complainant should contact an
EEO Counselor within forty- five days of the alleged discriminatory act.
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.
It is the Commission's policy that constructive knowledge will be imputed
to an employee when an employer has fulfilled its obligation of informing
employees of their rights and obligations under Title VII. Thompson
v. Department of the Army, EEOC Request 05910474 (September 12, 1991).
We have previously held that a generalized affirmation that an agency
posted EEO information, without specific evidence that the poster
contained notice of the time limits, is insufficient for constructive
knowledge of the time limits for EEO Counselor contact. Pride v. USPS,
EEOC Request No. 05930134 (August 19,1993).
The Commission determines that the agency has proffered more than a
generalized affirmation that it has posted EEO information. Specifically,
the record contains a copy of an EEO poster containing the applicable
time limit for initiating EEO contact and addressing the necessity for
initiating timely EEO contact. Additionally, the record contains evidence
that complainant attended EEO training on June 20, 2002. Specifically,
the agency submits a copy of complainant's training report and a copy of
the training presentation, which included the 45-time limit to contact
an EEO Counselor. We are, therefore, unpersuaded by complainant's
contention that she was unaware of the limitation period for initiating
timely contact with an EEO Counselor.
Moreover, we find that complainant had, or should have had, a reasonable
suspicion of unlawful employment discrimination with respect to her
removal and non-promotion, well prior to the forty-five day period
that preceded her initial EEO Counselor contact on February 5, 2003.
Complainant stated that she was notified of her removal and non-promotion
on September 30, 2002, and that the most recent incident of alleged
discrimination occurred on or about October 1, 2002, when she learned
that a white male replaced her with a higher grade.
Complainant has failed to submit adequate justification pursuant to 29
C.F.R. � 1614.105(a)(2),
for extending the limitation period beyond forty-five days. Accordingly,
the agency's decision to dismiss complainant's complaint for failure to
initiate timely EEO Counselor contact was proper and is AFFIRMED.
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 (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 12, 2004
__________________
Date