0120142202
10-07-2014
EEOC DOC 0120142202 (E.E.O.C.), 2014 WL 5316572 U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * *, COMPLAINANT, v. CHUCK HEGEL, SECRETARY, DEPARTMENT OF DEFENSE, (DEFENSE COMMISSARY AGENCY), AGENCY.
EEOC DOC 0120142202 (E.E.O.C.), 2014 WL 5316572
U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations
* * *, COMPLAINANT,
v.
CHUCK HEGEL, SECRETARY, DEPARTMENT OF DEFENSE, (DEFENSE COMMISSARY AGENCY), AGENCY.
Appeal No. 0120142202
Agency No. DECA000782014
October 7, 2014
DECISION
*1 Complainant filed a timely appeal with this Commission from the Agency's decision dated April 23, 2014, dismissing a formal 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
At the time of events giving rise to this complaint, Complainant worked as an Investigator at the Agency's facility in Fort Lee, Virginia.
The record indicates that Complainant initially contacted her first line supervisor, GJ, on June 14, 2011, requesting twenty-seven (27) hours of overtime compensation for a required July 11, 2011 through July 29, 2011 Agency training. Complainant's request noted that the overtime hours included time spent outside of class preparing for the training. Complainant's request was denied.
On February 27, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On April 15, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race and sex when:
1. On January 16, 2014, Complainant's request for overtime compensation was denied for attending a training course in June 2011.
On April 23, 2014, the Agency issued a final decision. The Agency stated that documentation provided indicated that Complainant's initial request for twenty-seven hours of overtime compensation was dated to June 14, 2011. The Agency found that the June 14, 2011 date was the date in which the alleged discriminatory action took place. Therein, the Agency dismissed the formal complaint on the grounds of untimely EEO counselor contact, pursuant to 29 C.F.R. 1614.107(a)(2).
On appeal, Complainant argues that despite being initially denied overtime compensation in June 2011, she did develop reasonable suspicion until the Agency's Human Resources Director, CC, denied her request again on January 16, 2014. Additionally, for the first time on appeal, Complainant states that after GJ denied her request, she met with an EEO Counselor who advised her against filing a claim. The exact date of this alleged EEO Counselor contact is indiscernible from the record; however, Complainant's appeal alludes to a 2012 meeting. Complainant alleges that she went to the EEO office to file a complaint, but "...was told at that time [she] did not have any proof that GJ's response was discriminatory. Therefore, [she] did not file an EEO complaint until [she] felt [she] had enough evidence." Complainant's appeal does not explicitly state which Agency EEO Counselor made this statement.
ANALYSIS AND FINDINGS
*2 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.
The record discloses that the alleged discriminatory event occurred on June 14, 2011, but that Complainant did not initiate contact with an EEO Counselor until February 27, 2014, which is beyond the forty-five (45) day limitation period. We have reviewed the appellate arguments advanced by Complainant. We determine that a fair reading of the complaint file reflects that Complainant had a reasonable suspicion of unlawful employment discrimination virtually contemporaneous with the time when the alleged discriminatory act occurred, and not in January 2014. We also note Complainant's contention that she had initially contacted an EEO Counselor with the intention to pursue the EEO complaint process sometime in 2012, but was misled by the EEO Counselor into not pursuing the matter at that time. Complainant provides no particulars regarding this assertion, such as the identity of the EEO Counselor who purportedly misled her. Other than Complainant's bare assertion on appeal, there is nothing in the record to support this contention. See, e.g., Webster v. Department of the Air Force, EEOC Appeal No. 01961069 (October 29, 19%). In sum, we find that Complainant has not provided sufficient justification for extending the time limit for contacting an EEO Counselor.
The Agency's final decision dismissing the formal complaint on the grounds of untimely EEO contact 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.
*3 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
Closed October 7, 2014
EEOC DOC 0120142202 (E.E.O.C.), 2014 WL 5316572
End of Document
(c) 2014 Thomson Reuters. No claim to original U.S. Government Works.
* * *, COMPLAINANT, v. CHUCK HEGEL, SECRETARY,..., EEOC DOC...
(c) 2014 Thomson Reuters. No claim to original U.S. Government Works.