Ardelle P.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.Download PDFEqual Employment Opportunity CommissionAug 3, 20180120181618 (E.E.O.C. Aug. 3, 2018) Copy Citation 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. 0120181618 2 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). 0120181618 3 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. 0120181618 4 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 Copy with citationCopy as parenthetical citation