01a50950
02-04-2005
Sheryl J. Coleman, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Sheryl J. Coleman v. Department of the Army
01A50950
February 4, 2005
.
Sheryl J. Coleman,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A50950
Agency No. ARCARSON04JUL0022
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 17, 2004, dismissing her formal 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 July 22, 2004, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
In her formal complaint filed on September 13, 2004, complainant
claimed that she was subjected to discrimination on the basis of race
(African-American) when she applied for a position at Fort Carson through
spousal preference program and was offered a position at a level below her
prior position as WS-7408-02 to WG-7408-02 in August 1998.<1> Complainant
further claimed that as of July 18, 2004, she viewed this loss of pay
as discriminatory. Complainant stated that her EEO contact was timely
because it was not until July 2004, when she "became reacquainted with
a former employee from Germany, " that she was told that information
relating to her hire in 1998 was inaccurate.
In its final decision dated September 17, 2004, the agency dismissed
complainant's complaint on the grounds of untimely EEO Counselor contact,
pursuant to 29 C.F.R. � 1614.107(a)(2).
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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that the alleged discriminatory event occurred in
August 1998, but that complainant did not initiate contact with an EEO
Counselor until July 22, 2004, which was well beyond the forty-five (45)
day limitation period.
The Commission has found that since the limitation period for contacting
an EEO Counselor is triggered by the reasonable suspicion standard,
waiting until one has "supporting facts" or proof of discrimination
before initiating a complaint can result in untimely Counselor contact.
See Bracken v. United States Postal Service, EEOC Request No. 05900065
(March 29, 1990). The Commission finds that complainant had, or should
have had, a reasonable suspicion of unlawful employment discrimination
at the time she was offered and accepted the position of Food Service
Worker, WG-7408-02, and that she should have contacted the EEO office
within forty-five days.
Moreover, the Commission has consistently held that a complainant must
act with due diligence in the pursuit of her claim or the doctrine of
laches may apply. See O'Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches
is an equitable remedy under which an individual's failure to pursue
diligently her course of action could bar her claim. Complainant waited
over approximately six years from the date of the alleged discriminatory
event before she finally contacted an EEO Counselor.
Complainant has failed to present 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 dismissing the
instant complaint on the grounds of untimely 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
February 4, 2005
__________________
Date
1The record reveals that complainant accepted
the offer for the position of Food Service Worker, WG-7408-02, at the
agency' s Nutrition Care Division of Evans Army Community Hospital in
Fort Carson, Colorado, and was placed in the position effective November
11, 1998.