0120121919
08-20-2012
Sheila N. McKnight, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Sheila N. McKnight,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120121919
Agency No. DECA000662012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 14, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales Store Checker at the Agency's Miramar MCAS facility in San Diego, California.
On February 8, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African American), sex (female), color (black), disability, and age (55) when from 2009 until she left in March 2011, her supervisor subjected her to a hostile work environment. Complainant asserted that her supervisor did not like her and only liked "black females who were subservate (sic) to her."
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for failure to timely contact the EEO counselor. The instant appeal followed. On appeal, Complainant submits documents related to her 2009 worker's compensation claim. She states she was not aware of the time limits for contacting an EEO counselor and that she wanted to make sure the supervisor was not coming back after she left in March 2011. The record contains a statement1 signed by Complainant and dated September 27, 2011, wherein she requests time limits be waived because: she has no money for a lawyer; she was not aware of the time limits; and she believed "if I had filed a complaint earlier substantial harm as a consequence would have occurred."
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 record discloses that Complainant has alleged the hostile work environment continued until March 8, 2011 (the date the supervisor transferred to a new facility in Japan), but she did not initiate contact with an EEO Counselor until January 9, 2012, which is well 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. The statement from Complainant dated September 27, 2011, indicates that at least by that date she was aware of the time limits for seeking counseling, yet she did not contact an EEO counselor until many months later on January 9, 2012.
In addition, although Complainant indicates that she feared reprisal if she pursued an EEO complaint, the Commission has repeatedly held that mere fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO counselor. See Duncan v. Dep't of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik v. Dep't of Def., EEOC Request No. 05930898 (Dec. 9, 1993).
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 tends 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 20, 2012
__________________
Date
1 While it is not clear what the statement was originally provided for, a copy is attached to her EEO complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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