01994452
11-01-1999
Ba Thi McLeod-Aster, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Ba Thi McLeod-Aster v. Department of the Navy
01994452
November 1, 1999
Ba Thi McLeod-Aster, )
Appellant, )
)
v. )
) Appeal No. 01994452
Richard J. Danzig, ) Agency No. DON99-62813-005
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On May 4, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated April 27, 1999, dismissing
three allegations from her complaint for untimely counselor contact.
The Commission accepts the appeal in accordance with EEOC Regulation 960,
as amended.
On January 14, 1999, appellant contacted the EEO office regarding
allegations of discrimination based on sex (female), race (Vietnamese),
and age (d.o.b. May 8, 1945). Informal efforts to resolve appellant's
concerns were unsuccessful. Accordingly, appellant filed a formal
complaint on April 1, 1999. The agency defined the allegations as
follows:
On December 7, 1998, appellant was forced to resign because her
supervisor would not change her work schedule or grant a one-month
leave of absence;
On November 12, 1995, appellant was removed from her regular part-time
position and placed in an intermittent part-time position which resulted
in 300 hours of sick leave to be taken away from her;
On November 24, 1997, appellant was not selected for the Recreation Aid,
NF -0189-01, position; and,
On July 1, 1998, appellant was issued a Letter of Caution because a
co-worker harassed and pushed appellant.
The agency accepted allegation a) for investigation. Allegations (b),
(c), and (d) were dismissed for untimely counselor contact, pursuant to
29 C.F.R. �1614.107(b). Specifically the FAD indicated that the alleged
events occurred between 38 to 6 months prior to appellants January 1,
1999 counselor contact. Moreover, the agency stated that appellant
told the counselor that she was unaware of the how to file a complaint
until after she resigned on December 7, 1998. According to the agency,
appellant knew or should have known about the EEO process and the time
limits because she attended three sexual harassment training classes
and received a handout explaining the complaint process.
On appeal, appellant makes no new contentions. She reiterates on
her appeal form that she was "not aware of how or where to file an
EEO complaint until after she resigned on 12/7/98." With respect to
the definition of allegation (c), appellant notes that the allegation
erroneously states that she was not selected for the sole position of
Recreation Aid. According to appellant, she also applied for the Duty
Manager and Food Service Worker positions at that time.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
In the instant case, appellant argues that she was unaware of the EEO
process until December 7, 1998. The Commission will impute constructive
knowledge of the EEO process to an employee when an employer has fulfilled
its obligation of informing employees of their rights and obligations
under Title VII. See Thompson v. Department of the Army, EEOC Request
No. 05910474 (September 12, 1991).
The record reveals, that although the agency has submitted documents
demonstrating that appellant attended sexual harassment training on
April 13, 1994, July 11, 1995, and May 1, 1996 there is no evidence
that the EEO process and time limitations were presented during these
training sessions. The record does, however, contain a copy of the
EEO information provided to appellant when on October 1, 1998, she was
processed as a "new employee" as part of a consolidation effort with
the Pearl Harbor Naval Station. A flow chart of the complaint process,
including the applicable time limitations was provided. Therefore, the
Commission finds that appellant had constructive knowledge of the time
limits on October 1, 1998, but waited over three months before contacting
a counselor. Accordingly, the agency's decision dismissing allegations
(b), (c), and (d) is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
11/01/1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations