0120131871
08-05-2013
Jasmine M. Drake, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
Jasmine M. Drake,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Appeal No. 0120131871
Agency No. DEA-2013-00131
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 27, 2013, 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
During the period at issue, Complainant worked as a Forensic Chemist at the Agency's South Central Laboratory in Dallas, Texas.
On November 8, 2012, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On February 6, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when:
1. she resigned (constructive discharge) from her position of Forensic Chemist, GS-1320-12, on June 22, 2012, due to ongoing harassment;
2. the Office of Professional Responsibility (OPR) refused to perform another polygraph examination with respect to her urinalysis testing; and
3. management failed to protect her as a Drug Enforcement Administrative (DEA) employee.
The record reflects that Complainant worked as a Forensic Chemist from November 2009 to June 2012. The record further reflects that on October 19, 2011, Complainant was subjected to a random drug urinalysis, and the results indicated a positive urinalysis for cocaine. The record further reflects that the Agency conducted an investigation. As part of the investigation, Complainant submitted to a polygraph test and the results indicated that she was deceptive to the questions. During the relevant period, Complainant was "benched" and her work duties were limited to administrative duties. The record reflects that in June 2012, Complainant resigned from Agency employment.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency determined that the alleged discriminatory event occurred from February 2012 through June 22, 2012, but Complainant did not initiate contact with an EEO Counselor until November 8, 2012, which was beyond the forty-five (45) limitation period.
The Agency noted that Complainant stated to the EEO Counselor that her reason for delay in contacting a Counselor was that she was not made aware of her rights as a DEA employee before she resigned, and that it was only after she contacted her attorney that she was made aware of her rights to seek EEO counseling. The Agency stated that it contacted Complainant's duty station to determine whether the EEO posters were posted in the facility during the relevant period. The Agency further stated that it was determined that the EEO posters were posted in the facility including the cafeteria. The Agency also found that Complainant was aware of the designated EEO Counselor at the facility who was her colleague up to the time she resigned from the Agency.
Complainant, on appeal, argued that the Agency has provided no evidence reflecting that the EEO posters were on display during the relevant period. Specifically, Complainant stated that "there was no date given as to when posters were supposedly in place. What is more, the response contained no specification as to who supplied the EEO this information, nor does is specify the person from the EEO who requested this information."
In response, the Agency argued that because the EEO Poster with timeframes was on display in Complainant's workplace, she was or should have been familiar with the 45-day limitation period. The Agency also noted that on June 22, 2010, Complainant attended training on the EEO process from one of DEA's EEO Counselors. In support of its assertions, the Agency submitted a copy of the EEO Counselor's affidavit.
The record contains a copy of the EEO Counselor's affidavit dated May 24, 2013. Therein, the EEO Counselor stated that on September 8 and 9, 2008, he attended EEO Counselor training and "it was during this training that I became aware of the federal mandate requiring the display of the 'EEO Counselors' poster in an area accessible to all employees." The EEO Counselor stated that upon his return from the training, he received "a new 'EEO Counselors' poster that included my name and contact information. I displayed this new poster on a corkboard in the South Central Laboratory's cafeteria, replacing the previously displayed 'EEO Counselor's poster that included the prior EEO Counselor's name and contact information."
Further, the EEO Counselor stated that from September 2008 to present, the corkboard in the cafeteria "has continuously bore an 'EEO Counselor' poster setting forth EEO complaint procedures, including the requirement to contact an Agency EEO Counselor within 45 days after the occurrence of alleged discrimination."
The instant appeal followed.
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 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 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.
It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991) (citing Kale v. Combined Ins. Co. of America, 861 F.2d 746, 752-53 (1st Cir. 1988). In this case, the Agency has stated that it posted an EEO poster in Complainant's work facility containing information regarding EEO rights as well as the applicable time limits for initiating an EEO counseling process. The Agency also stated that on June 22, 2010 Complainant attended training which covered the 45-day limitation period. Complainant has not contradicted the Agency's contention. Based on the foregoing, we note that the Agency has provided this Commission with information sufficient to determine that Complainant in fact had constructive knowledge of the time limits for EEO Counselor contact. Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993) (citing Polsby v. Shalala, 113 S.Ct. 1940 (1993).
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's formal complaint on the grounds of untimely EEO Counselor contact.
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 5, 2013
__________________
Date
2
0120131871
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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