01990552
01-04-2001
Joan Revell, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Joan Revell v. Department of the Navy
01990552
January 4, 2001
.
Joan Revell,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01990552
Agency No. DON-97-31035-005
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated September 24, 1998, dismissing her complaint of unlawful
employment discrimination. In her complaint, complainant alleged that
she was subjected to discrimination in retaliation for prior protected
activity when:
Complainant's application for the Voluntary Leave Transfer Program was
not processed by the agency in December 1996;
Complainant's request for advanced sick leave was delayed;
Complainant's request for training was denied;
Complainant was terminated from Military Sealift Command;
Complainant was not promoted to Yeoman Storekeeper;
The Junior Supply Officer sexually harassed complainant while aboard
the USNS Big Horn on November 30, 1994, and he continued harassing her
until November 1995; and
Complainant's informal EEO complaint was not processed in a timely
manner.
The agency dismissed issues (1) through (5) pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
Specifically, the agency stated that complaints of retaliation must be
based on prior EEO activity, however, complainant failed to show that she
engaged in prior EEO activity. In addition, the agency dismissed issue
(6) pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. The agency noted that the alleged
sexual harassment occurred between November 1994 and November 1995,
however, complainant did not initiate EEO Counselor contact with regard
to this issue until January 28, 1997, which is nearly two years beyond
the applicable limitations period. Finally, the agency dismissed issue
(7), for failure to state a claim. Specifically, the agency stated that
a complaint alleging improper processing of a formal complaint does not
state a separate claim of discrimination.
In addressing complainant's claim of reprisal discrimination, the
Commission has stated that the anti-reprisal provision of Title VII
protects employees participating in the EEO process from retaliation.
The Commission defines, but does not limit, employee participation
to occur when an employee has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding or hearing.
Whipple v. Department of Veterans Affairs, EEOC Request No. 05910784
(February 21, 1992) (citations omitted).
In the present case, however, the record contains no evidence of
complainant's engagement in prior EEO activity to warrant a claim of
reprisal. On appeal, complainant failed to proffer any new evidence or
documentation to support her claim of reprisal. The Commission thus
finds the agency's decision properly dismissed issues (1) through (5)
for failure to state a claim.
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 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.
With regard to issue (6), we find that the agency properly dismissed
this issue for untimely EEO Counselor contact. The record discloses
that the alleged sexual harassment occurred from November 1994 through
November 1995, but complainant did not initiate contact with an EEO
Counselor until January 28, 1997, which is beyond the forty-five (45) day
limitation period. On appeal, no persuasive arguments or evidence have
been presented to warrant an extension of the time limit for initiating
EEO contact.
With regard to issue (7), we find that the agency properly dismissed
this issue for failure to state a claim. The Commission has held that
allegations of improper processing do not state separate processable
claims. In addition, the record reveals that complainant's concerns
were raised with the agency official responsible for the quality of
complaint processing.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 4, 2001
__________________
Date