01982222
04-02-1999
Joyce Harlacker, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy Agency.
Joyce Harlacker v. Department of the Navy
01982222
April 2, 1999
Joyce Harlacker, )
Appellant, )
)
v. ) Appeal No. 01982222
) Agency No. 9742237008
Richard J. Danzig, )
Secretary, )
Department of the Navy )
Agency. )
______________________________)
DECISION
I. INTRODUCTION
On January 21, 1998, appellant filed the instant appeal from the agency's
January 7, 1998 final decision dismissing one allegation of appellant's
complaint. The agency dismissed the allegation pursuant to 29 C.F.R. ��
1614.107(a) (failure to state a claim) and 1614.107(b) (untimeliness).
II. ISSUE
Whether the agency properly dismissed the allegation for failure to
state a claim and untimeliness.
III. BACKGROUND
On November 22, 1996, appellant filed a complaint of unlawful employment
discrimination in violation of � 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. In her complaint, appellant alleged
that she was subjected to discrimination on the bases of disability
(adjustment disorder with mixed anxiety) and in retaliation for prior
EEO activity when: 1) the agency did not clarify its interpretation of
"substantive documentation" prior to the effective date of appellant's
removal; and 2) the Commanding Officer denied appellant the right to
speak with him personally. By decision dated December 11, 1996, the
agency dismissed appellant's complaint for failure to state a claim.
That decision was the subject of an earlier appeal to this Commission
(EEOC Appeal No. 01972184, November 25, 1997). In our decision in that
appeal, the Commission affirmed the agency's dismissal of allegation
#1 but remanded allegation #2 to permit the agency to clarify "when
appellant was allegedly denied the opportunity to speak personally with
the Commanding Officer."
On remand, the agency determined that appellant had requested, in a
letter from her attorney to the Commanding Officer dated April 29, 1996,
the opportunity to meet personally to discuss a complaint of "sexual
harassment and other discriminatory treatment" she had earlier made
against the agency. The record does not reflect any response from the
Commanding Officer to the request.
The EEO Counselor's report shows that appellant's first contact with
the EEO office concerning the subject matter of allegation #2 occurred
on October 2, 1996.
Following the supplemental investigation, the agency issued a second
final decision, dated January 7, 1998, dismissing allegation #2 on the
grounds that it was untimely and that it failed to state a claim.
IV. ANALYSIS AND FINDINGS
We find that the agency correctly dismissed allegation #2 on grounds of
untimeliness. EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that
complaints of discrimination 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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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 the present case, appellant did not initiate contact with an EEO
Counselor until October 2, 1996, more than 5 months after she requested a
personal meeting with the Commanding Officer on April 29, 1996. Certainly
within a month of making that request, not having received any response,
appellant must have had a "reasonable suspicion" that the Commanding
Officer would not grant her request. At the point, she was under the
obligation to bring the matter to the attention of an EEO Counsel within
45 days. This she did not do. Therefore, unless appellant can establish
some basis for extending the 45-day deadline, her claim is time-barred.
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. 29 C.F.R. � 1614.105(a)(1)
Appellant does not contend that she was unaware of the applicable time
limits nor has she come forward with any other information that would
justify the extension of those time limits. Accordingly, we find that
appellant's allegation #2 was untimely.<1>
V. CONCLUSION
For the foregoing reasons, we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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.
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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.F.R.). 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:
April 2, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Because we have concluded that allegation #2 was untimely, we do not
address the agency's alternative argument that the allegation failed
to state a claim.