Catherine E. Gaines-Auld, Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 2, 2009
0120092436 (E.E.O.C. Oct. 2, 2009)

0120092436

10-02-2009

Catherine E. Gaines-Auld, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.


Catherine E. Gaines-Auld,

Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120092436

Agency No. 096328500901

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated April 22, 2009, 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.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely

EEO Counselor contact.

In her complaint, complainant alleged that she was subjected to

discrimination on the basis of sex (female) when: in November 2008,

she received a FOIA copy of her May 2007 administrative grievance,

which showed that the Deciding Official predetermined the outcome;

during August 2007, she was initially denied a cash award; on June 25,

2007, she was realigned to another position, and on May 21, 2007, she was

strongly encouraged to waive all EEO rights and file an administrative

grievance against a senior manager.

The record shows that complainant initiated contact with an EEO Counselor

on December 22, 2008. 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.

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.

On appeal, complainant asserts, inter alia, that she was encouraged

to resolve her concerns through the agency's administrative grievance

procedure, instead of the EEO complainant process. She states that the

agency's representative (Assistant Counsel) "failed to offer, provide or

suggest consulting with an EEO Counselor knowing that my claims would be

fully substantiated in any unbiased investigative process." However, the

record reflects that agency "Flowcharts" detailing EEO contact timeframes

had been posted throughout complainant's work area. Further, complainant

had fulfilled the agency's mandatory, annual EEO training requirement.

Complainant had reasonable suspicion of discrimination from May 2007

through August 2007, but waited until December 22, 2008, after she

had received a FOIA copy of her May 2007 administrative grievance,

to initiate contact with an EEO counselor.

On appeal, complainant has presented no persuasive arguments or

evidence warranting an extension of the time limit for initiating EEO

Counselor contact. Accordingly, the agency's final decision dismissing

complainant's complaint for untimely EEO Counselor contact is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 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 (S0408)

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 (Z1008)

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

October 2, 2009

__________________

Date

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0120092436

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092436