Cherilyn C.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionApr 17, 20180520180091 (E.E.O.C. Apr. 17, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cherilyn C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Request No. 0520180091 Appeal No. 0120172225 Agency No. DON-175546001027 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120172225 (October 25, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). In her underlying complaint, Complainant alleged that the Agency subjected her to unlawful discrimination on the basis of her sex when, on December 22, 2016, she was informed that the Office of Personnel Management (OPM) had downgraded her position from GS-7 to GS-6. In its final decision, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to timely initiate contact with an EEO counselor. On appeal, the Commission affirmed the Agency’s dismissal, finding that the 45-day period for contacting an EEO counselor began to run on September 18, 2016, the effective date of the 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. 0520180091 2 demotion decision and not on December 22, 2016, as Complainant alleged. The previous decision noted that the OPM classification decision was issued on August 5, 2016, and signed by Complainant on August 8, 2016. Complainant attempted to dispute the classification with OPM at that time, and only turned to the EEO process when her appeal to OPM was unsuccessful. That being so, the Commission concluded that Complainant’s initiating contact with an EEO counselor on January 30, 2017 was untimely. In her request for reconsideration, Complainant reiterates the arguments she raised on appeal. The record shows that Complainant had reason to suspect that her demotion was the result of discrimination. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012). We find that Complainant’s arguments do not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law or will have a substantial impact on the policies, practices, or operations of the agency. Accordingly, we find that Complainant failed to demonstrate that the Commission should reconsider its appellate decision. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120172225 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 0520180091 3 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 April 17, 2018 Date Copy with citationCopy as parenthetical citation