Ardelle P.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Aug 3, 2018

0120181618 (E.E.O.C. Aug. 3, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ardelle P.,1
Complainant,

v.

Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120181618

Agency No. 9S1L18004

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated March 19, 2018, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Flight Manager, 2102,
GS-12, at the Agency’s 618th Air Operations Center/Tanker Airlift Control Center on Scott Air
Force Base, Illinois. On February 26, 2018, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the basis of sex (female) when on October 5, 2017,
Complainant’s supervisors did not comparably compensate Complainant at the same annual
award/bonus percentage for fiscal year 2016, as men both meeting and not meeting her skill level.

The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for
failure to comply with the applicable time limits contained in 29 C.F.R. § 1614.105. The Agency
stated that Complainant failed to make initial contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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ANALYSIS AND FINDINGS

Pursuant to the regulation at 29 C.F.R. § 1614.107(a)(2), an agency shall dismiss a complaint that
fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.105. An aggrieved
party must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the
action. 29 C.F.R. § 1614.105(a)(1).

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.

In the present case, we find the Agency properly dismissed Complainant’s complaint.
Complainant did not initiate EEO Counselor contact until November 28, 2017, outside of the
requisite forty-five (45) day time limitation.

On appeal, Complainant purports that she did not become aware of the alleged discriminatory
event until November 5, 2017. However, additional statements to the EEO Counselor, provided
with the specific intent to clarify Complainant’s date of awareness, indicate Complainant had or
should have had a reasonable suspicion of discrimination prior to November 5, 2017. Specifically,
the record shows that during the pre-complaint process, Complainant provided multiple dates for
when she became aware of the alleged discriminatory event, but on her amended complaint she
indicated that she gained awareness on October 5, 2017. Likewise, in an email dated February 28,
2018, Complainant reported that she became aware of management’s failure to comparably
compensate her regarding her annual bonus/award on October 5, 2017, when she “stumbled upon
the performance award inequality.”2 We determine that Complainant did not present persuasive
arguments or evidence warranting an extension of the time limit for initiating EEO Counselor
contact.

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complaint’s complaint is AFFIRMED.

2 The Lilly Ledbetter Fair Pay Act of 2009 is not applicable in this case, as there is not an
allegation of disparate pay or other ongoing benefit that recurred during the forty-five (45) day
window. 42 U.S.C. § 2000e-5(e)(3)(A).

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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.

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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 3, 2018
Date