01A44839
11-08-2004
Sharon R. Watkins, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Army & Air Force Exchange Service (AAFES), Agency.
Sharon R. Watkins v. Army & Air Force Exchange Service
01A44839
November 8, 2004
.
Sharon R. Watkins,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Army & Air Force Exchange Service (AAFES),
Agency.
Appeal No. 01A44839
Agency No. 03-104
DECISION
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. In her complaint, complainant
alleged that the agency subjected her to harassment on the bases of race
(African-American), sex (female), and disability (Post Traumatic Stress
Disorder and Major Depressive Disorder) when her supervisor (S1) sexually
assaulted her, her male coworkers drew obscene pictures and made jokes
daily about the assault, and her manager mentioned S1's name and stated
that complainant always had a poor relationship with S1.
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.
The record discloses that the alleged harassment occurred through May
14, 2003, when complainant felt that she could no longer function in
the workplace and requested leave. The record contains electronic mail
(e-mail) communication between complainant and a friend at another agency
facility who appears to investigate EEO complaints for the agency (C1).
In an e-mail dated May 1, 2003, complainant indicated that she wanted
to file a discrimination complaint against her manager and asked C1
about the steps of the EEO process. In an e-mail dated May 5, 2003,
C1 informed complainant that she should contact an EEO Counselor at
her facility to initiate the EEO process.<1> The EEO Counselor's
Report indicates that complainant initiated contact on July 10, 2003,
which is beyond the forty-five (45) day limitation period. In addition,
the Report indicates that complainant initiated contact outside of the
regulatory timeframe because she was afraid to come forward. However,
complainant stated that her mental state was impaired and that she was
no longer in the workplace so she did not have access to information on
the complaint process. In addition, complainant provided an affidavit
from her psychiatrist stating that complainant was severely incapacitated
by Anxiety when she was referred to him in June 2003 and that she was
unable to return to work until September 2003. In response, the agency
stated that, in January 1999, complainant was provided Sexual Harassment
training that contained information on EEO complaint procedures and
Counselor contact information. The Sexual Harassment trainer provided
a declaration regarding the contents of the course. In addition, the
agency provided copies of EEO posters containing the deadline information
as well as Counselor contact information and identifying pictures that
were posted in locked official bulletin boards.
We find that complainant has not presented persuasive arguments or
evidence to warrant an extension of the time limit for initiating
EEO Counselor contact. Complainant contacted a friend, C1, to obtain
information about the EEO process on May 1 and, on May 5, was informed
that she should contact an EEO Counselor to initiate the EEO process.
Complainant was in the workplace until May 14 so she had an opportunity
to view the EEO posters in the bulletin boards and attempt to locate
an EEO Counselor within a timely manner. In addition, complainant was
informed of the EEO process several years earlier in training. Further,
complainant failed to show that she was totally incapacitated so as to
render her unable to initiate EEO contact once she left the workplace.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
November 8, 2004
__________________
Date
1We note that C1 does not mention the 45-day
time limit to initiate EEO contact in the e-mail message.