01980325
11-16-1998
Lillian N. Bristow, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Lillian N. Bristow v. Department of the Navy
01980325
November 16, 1998
Lillian N. Bristow, )
Appellant, )
)
v. ) Appeal No. 01980325
) Agency No. DON-97-00124-003
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
The Commission finds that the agency's August 26, 1997 decision dismissing
a portion of appellant's complaint on the basis of untimely EEO counselor
contact, is proper pursuant to the provisions of EEOC Regulation 29
C.F.R.�1614.107(b).
The record shows that appellant contacted an EEO counselor on April 11,
1997, alleging, inter alia, that she had been discriminated against
on the basis of sex (female) when she was sexually harassed during the
months of October, November and December 1995, and in April 1996, when
her immediate supervisor used sexual gestures around her work area,
groping his private parts and suggestively leaned against her desk
while giving appellant work instructions. The EEO Counselor's Report
states that in her affidavit, appellant stated that the reason she did
not come forward with the sexual harassment claim sooner was because
she was afraid of losing her job because she is a single parent with a
sick child.<1> In its final decision, the agency dismissed the sexual
harassment claim on the grounds of untimely EEO counselor contact after
finding that appellant had not sought EEO counseling until April 11, 1997,
well beyond the 45-day time limit provided by EEOC Regulations.<2>
The Commission applies a "reasonable suspicion" standard to the triggering
date for determining the timeliness of the contact with an EEO counselor .
Cochran v. United States Postal Service, EEOC Request No. 05920399 (June
18, 1992). Under this standard, the time period for contacting an EEO
counselor is triggered when the complainant should reasonably suspect
discrimination, but before all the facts that would support a charge
of discrimination may have become apparent. Id.; Paredes v. Nagle,
27 FEP Cases 1345 (D.D.C. 1982). The record shows that appellant was
aware of the alleged sexual harassment as early as October 1995, but did
not seek counseling until April 1997. Even if we accept that she sought
EEO counseling concerning this issue in December 1996, as part of her
prior EEO formal complaint, her EEO counselor contact would still be well
beyond the 45-day time limit provided by EEOC Regulations. Accordingly,
the agency's final decision dismissing appellant's sexual harassment
claim on the grounds of untimely EEO counselor contact is AFFIRMED.
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. �l6l4.604(c).
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 consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (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).
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:
November 16, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The agency, however, has failed to provide on appeal a copy of said
affidavit to the Commission.
2 Appellant filed a prior EEO complaint on December 9, 1996, and that
said complaint included the sexual harassment allegation. She was sent
to informal EEO counseling because said allegation was not discussed
during the informal process of Agency Case No. DON-97-00124-001.