closed0120150065
02-06-2015
Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120150065
Agency No. GSA-14-R9-Q-0111
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 3, 2014, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Inventory Management Specialist, GS-9 at the Agency's facility in Honolulu, Hawaii. On August 22, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and age (66).
In its final decision dated September 3, 2014, the Agency determined that Complainant's complaint was comprised of the following claim:
On or about March or April 2013, [Complainant] became aware [she was] not selected for the GS-11 Supply Management Specialist position.
The Agency dismissed Complainant's complaint for untimely EEO Counselor contact. The Agency found that Complainant reasonably suspected discrimination in March/April 2013, when she became aware that one of the interview panel members allegedly made a comment regarding her age. The Agency further found that Complainant had constructive knowledge of the applicable time limit on January 27, 2014, but did not contact an EEO Counselor until June 30, 2014. Specifically, the Agency stated "Agency records show that [Complainant] completed the FY 2014 No Fear Act Training on January 27, 2014...it explained the requirement to contact an EEO Official within 45 calendar days...So assuming arguendo that [she was] not aware of the 45 calendar days time limit, [she] would have had constructive knowledge of the time limitations after completing the course on January 27, 2014. However, [Complainant] did not initiate contact with an EEO Official until June 30, 2014..."
The instant appeal followed. On appeal, Complainant asserts "[a]fter the interview my co-worker told me that one of the interviewers made a comment about my age. [She] ignored the comment and did not think about going to EEO because [she was] not familiar with the system and was unsure of how to start the process."
ANALYSIS AND FINDINGS
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. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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.
We find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact. The record reflects that Complainant should have reasonably suspected discrimination in March/April 2013, when a co-worker allegedly told her that one of the members of the interview panel made a comment about her age.1 While Complainant asserts that she was not aware of the concept of age discrimination and how to initiate the EEO process, we concur with the Agency that she should have had constructive knowledge of the applicable time limit by January 27, 2014, when she completed the FY 2014 No Fear Act Training. The record contains copies of the relevant materials from the FY 2014 No Fear Act training program. The training materials reference age discrimination and properly provide that in order to initiate the EEO process, one must contact an EEO official within 45 calendar days from the matter alleged to be discriminatory or the effective date of a personnel action. Based on the foregoing, we find that Complainant should have contacted an EEO Counselor 45 days after January 27, 2014 (by January 27, 2014, Complainant should have already reasonably suspected discrimination and had constructive knowledge of the applicable time limit).2 However, Complainant did not initiate EEO contact until June 30, 2014. We find that Complainant failed to provide sufficient justification to extend the time period until her June 30, 2014 EEO contact date.
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 6, 2015
Date
1 The record contains a copy of the EEO Counselor's Report. Therein, the EEO Counselor provides, in pertinent part, that "[Complainant] confirmed that she was aware of the ageist comment in March/April 2013 after the interviews..."
2 We note that the Agency, in its response brief, also provides that Complainant completed No Fear Act Training in 2008 and 2011. However, the record does not contain the relevant materials for these trainings.
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0120150065
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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