01986398_r
11-04-1999
Diana Mayfield, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, (Armed Forces Retirement Home), Agency.
Diana Mayfield, )
Appellant, )
)
v. ) Appeal No. 01986398
) Agency No. USNH97-00154-004
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
(Armed Forces Retirement )
Home), )
Agency. )
______________________________)
DECISION
On August 17, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated August 10, 1998, pertaining
to her complaint of unlawful employment discrimination in violation
of �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq., and Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The Commission accepts appellant's appeal in
accordance with EEOC Order No. 960, as amended.
In her complaint, appellant alleged that she was subjected to
discrimination on the bases of race (Black), sex (female), and disability
(on-the-job injury) when:
OWCP paperwork was incorrectly prepared resulting in appellant not
being paid for time lost off the job for the periods of June 1993 -
November 1993, December 1994 - July 1995, and June 1996 - January 1997.
Appellant was placed in an AWOL status from 20 August 1996 - 11
October 1996.
Appellant was denied a uniform allowance in May 1996.
Appellant was denied a job accommodation in May 1996.
Appellant was frequently sexually propositioned by two doctors in
September 1995, November 1995, December 1995, March 1996, and numerous
other times in 1996.
Appellant was subjected to racial slurs by three doctors on unspecified
dates and being called a "bitch" by the Health Systems Specialist in
July 1995.
The agency accepted allegations 1 and 2 for investigation. The agency
dismissed allegations 3 through 6 pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely EEO contact. Specifically, the agency
noted that appellant did not contact an EEO Counselor until October 11,
1996, which was more than 45 days from the dates of incident raised in
allegations 3 and 4. With regard to allegations 5 and 6, the agency
noted that appellant did not raise these issues with an EEO Counselor
until November 1996, which was, also, more than 45 days from the alleged
discriminatory events.
On appeal, appellant contends that she contacted various federal offices
in an attempt to resolve the alleged problems of unlawful discrimination,
which she had continuously experienced at the agency. Appellant also
contends that she feared talking to anyone at the agency about sexual
harassment because it "would have meant losing my job."
In response, the agency notes that appellant had, in fact, spoken in
May 1996, with two employees, who served as EEO Counselors about being
denied a uniform allowance in May 1996; however, appellant did not allege
discrimination or indicate that she wanted to file an EEO complaint
at the time. The agency submits affidavits by the two identified
employees, both indicating that appellant spoke to them in May 1996,
regarding the denial of a uniform allowance, however she did not raise
a discrimination allegation. One employee indicates that she worked in
the same general area as appellant and that appellant was just talking
to her as a co-worker, not in her capacity as an EEO Counselor. Finally,
the agency asserts that the continuing violation theory is not applicable
because there is no nexus between appellant's accepted allegations and
those which were dismissed.
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.
The record reflects that appellant clearly sought counseling beyond the
45-day period. Appellant has not offered justification sufficient to
extend the time limit. Although appellant appears to indicate that
she feared reprisal if she pursued an EEO complaint, the Commission
has repeatedly held that mere fear of reprisal is an insufficient
justification for extending the time limitation for contacting an
EEO Counselor. See Kovarik v. Department of Defense, EEOC Request
No. 05930898 (December 9, 1993). Accordingly, the agency's decision to
dismiss allegations 3 through 6 for untimely EEO contact was proper and
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:
November 4, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations