01A14002_r
07-18-2002
Denice A. Forsht, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Denice A. Forsht v. Department of the Navy
01A14002
July 18, 2002
.
Denice A. Forsht,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A14002
Agency No. DON-01-0464A-001
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated April 20, 2001, 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.
Complainant initiated EEO contact on February 6, 2001.
After informal efforts to resolve her discrimination claim failed,
complainant filed a formal complaint on March 2, 2001. In her complaint,
complainant alleged that she was subjected to discrimination on the
basis of sex when the agency failed to convert her from a GS-5 student
trainee to a GS-7 career-appointed chemist promptly after she graduated
from college in December 1998.
In its final decision, the agency dismissed complainant's complaint,
pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the agency
determined that complainant knew of the events that gave rise to her
discrimination complaint as far back as September 10, 1999, when she
received notice from the agency that she had been converted to a chemist
effective April 11, 1999, yet failed to initiate EEO contact until
February 6, 2001.
On appeal, complainant contends that the agency improperly dismissed
her complaint. Complainant contends that the agency assured her that it
would change her promotion date to a chemist to the requested December
1998 date and therefore she had no reason to pursue the EEO process
until the agency notified her that it would not be able to do so.
Complainant contends that while she received �unofficial� verbal notice
from the agency that it would not backdate her promotion to December
1998 on December 12, 2000, she did not receive official notice until
her congressman received a letter from the agency in February 2001.
Complainant contends that the written notice, rather than the verbal
notice triggers the relevant time limits.
In response, the agency reiterates the arguments found in its final
decision and adds that complainant received notice that the agency
would not backdate her promotion to December 1998 on December 12, 2000.
The agency maintains that this verbal notice was sufficient to trigger
complainant's reasonable suspicion of discrimination and the applicable
time limits.
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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record reveals that complainant graduated from college in December
1998. The record also reveals that the agency converted complainant
from a GS-5 student trainee to a GS-05 chemist on April 11, 1999.
The record further reveals that in response to complainant's request
for an earlier promotion date, the agency moved complainant's promotion
date to September 2000. The agency subsequently promoted complainant
from a GS-5 to a GS-9 position effective September 26, 1999, and from
a GS-7 to a GS-9 position effective September 24, 2000.
In her complaint, complainant contends that the agency subjected her to
discrimination when it failed to promote her to chemist upon graduation
in December 1998. We note that the record contains a timeline of
relevant events prepared by complainant in which she acknowledges that
on September 10, 1999, �[a]n SF-50 was received from [the agency] that
I have been changed to a Chemist with an effective date of 4/11/99....I
should have been converted to a chemist in December 1998.� We also note
that complainant contacted her congressman regarding the matter in a
letter dated November 5, 2000. We further note that in a correspondence
to her congressman, complainant stated that the agency notified her on
December 12, 2000 that it would not be able to backdate her promotion
to chemist to December 1998, as she requested.
Upon review of the record, the Commission determines that complainant
had or should have had reasonable suspicion of discrimination more than
forty-five days prior to the date she initiated EEO contact. Complainant
argues on appeal that the time limits should not be triggered until the
date her congressman received written notice that the agency would not
change her promotion date; however, we determine that her attempts to
seek redress through agency officials and a congressman evidence her
reasonable suspicion of discrimination well before the date of her
initial EEO contact. Moreover, we note that complainant's reliance
on agency officials and a congressman to resolve her dispute fails
to toll the applicable time limits. The Commission has consistently
held that the utilization of agency procedures, union grievances, and
other remedial processes does not toll the time limit for contacting an
EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal
No. 01992093 (November 29, 2000). On appeal, complainant fails to
present any evidence that would warrant an extension or waiver of the
relevant time limits. Consequently, we find that complainant's February
6, 2001 EEO contact was untimely.
Accordingly, the Commission AFFIRMS the agency's dismissal of
complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 18, 2002
__________________
Date