0120112274
08-23-2011
Dorothy M. Barr, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Dorothy M. Barr,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112274
Agency No. ARMEADE10OCT04550
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 2, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Transportation Inspector at the Agency’s Transportation Office
facility in Fort Meade, Maryland.
On November 8, 2010, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the basis of reprisal
for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964 when:
1. on December 19, 2008, her supervisor told her that she should not
enter the supervisor’s office and that she (the supervisor) was sick
of seeing her;
2. on February 3, 2009, she received an inflammatory email from the
supervisor
3. on February 3, 2009 – March 4, 2010 Complainant experienced a great
deal of hostility at the hand of the supervisor in an attempt to defame
or inflict mental emotional stress on Complainant;
4. on March 10, 2010, Complainant was abruptly bumped into by the
supervisor in a deliberate attempt to intimidate and inflict bodily harm
upon Complainant.
The record indicates that Complainant initially had contact with the EEO
office in March 2010, and received a right to file her formal complaint
on April 8, 2010. Complainant again contacted the EEO office on October
6, 2010. She filed a formal complaint on the above issues on November
5, 2010.
The Agency dismissed claims 1 and 2 because they were raised in an earlier
complaint. The Agency also dismissed claims 3 and 4 as untimely raised
with the EEO counselor.
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.
In the instant case, to the extent that Complainant raised all four
claims with the counselor in October 2010, those claims were beyond the
45-day limitation period and thus untimely raised. To the extent that
Complainant raised claims 1 and 2 with the EEO counselor in March 2010,
she did not timely filed a formal complaint on those claims within 15
days of her receipt of the April 8, 2010 notice of right to file. On
appeal, Complainant has not offered adequate justification to warrant
an extension of the time limit for filing the complaint.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
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
August 23, 2011
__________________
Date
2
0120112274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112274