0120101055
01-07-2011
Patricia L. Bennett, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Patricia L. Bennett,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 01-2010-1055
Agency No. ARRILEY09OCT04545
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 7, 2009, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission
finds that Complainant's complaint was properly dismissed pursuant to
29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected to her
discrimination on the bases of sex (female), disability (mental), and age
(50) when:
1. On September 21, 2009 she was advised that the Agency would be able
to reconcile her being supervised by a volunteer;
2. Between January 2009 and June 2009, Complainant alleges that she was
directed by a volunteer regarding the scope of her performance duties;
and
3. On multiple occasions between January 2009 and June 2009, Complainant
was counseled by her supervisor in the presence of the volunteer.
ANALYSIS AND FINDINGS
The record indicates that Complainant claimed that she was being
supervised in the performance of her duties by an individual volunteering
at Complainant's worksite. While the record does not specifically
indicate the nature of the volunteer activities, it is undisputed that
the individual about whom Complainant complained, is not an employee of
the Agency. The record contains memoranda from Complainant dating back
to April 2009 in which Complainant details her interaction involving the
volunteer and her discussions with her supervisor regarding her concerns.
The record further indicates that following a series of conflicts between
Complainant, her supervisor and the volunteer, Complainant left her job
on July 23, 2009 and signed a memorandum dated July 30, 2009 stating that
she was not coming back to her job. The record further discloses that
she initially visited the Agency's EEO office on June 24, 2009 regarding
her concerns but failed to initiate the complaint process at that time.
Complainant claims on appeal that depression and stress prohibited her
from functioning.
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.
The Commission has held that in order to establish EEO Counselor contact,
an individual must contact an agency official logically connected to
the EEO process and exhibit an intent to begin the EEO process. See
Allen v. United States Postal Service, EEOC Request No. 05950933
(July 9, 1996). EEO Counselor contact, for purposes of tolling the
time limit, requires at a minimum that the complainant intends to
pursue EEO counseling when she initiates EEO contact. See Snyder
v. Department of Defense, EEOC Request No. 05901061 (November 1, 1990);
Menard v. Department of the Navy, EEOC Appeal No. 01990626 (January 5,
2001), request for reconsideration denied, EEOC Request No. 05A10279
(May 9, 2001). We find that complainant failed to exhibit the requisite
intent to initiate EEO counseling prior to October 1, 2009. Moreover,
we find that Complainant's reasonably suspected discrimination regarding
the volunteer at her worksite long before her contact with her supervisor
on September 21, 2009.
Upon review, the Commission finds that Complainant had a reasonable
suspicion of discrimination as early as April 2009 and at the latest by
July 23, 2009 when she left her position with the Agency as a result of
her interactions with her supervisor and the volunteer. Complainant has
not indicated that she was unaware of the time limitations for seeking EEO
counseling nor has she presented persuasive evidence regarding her failure
to begin the EEO process on June 24, 2009. The Commission finds that
Complainant did not initiate contact with an EEO Counselor until October
1, 2009, which is beyond the forty-five (45) day limitation period.
On appeal, Complainant has presented no persuasive arguments or
evidence warranting an extension of the time limit for initiating EEO
Counselor contact. 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
January 7, 2011
__________________
Date
2
01-2010-1055
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
01-2010-1055