01A10562
04-04-2001
Dorothy C. Benford, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Dorothy C. Benford v. Department of the Navy
01A10562
April 4, 2001
.
Dorothy C. Benford,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A10562
Agency No. DON-00-00061-002
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2). The record shows that
complainant sought EEO counseling on May 30, 2000, claiming that she had
been discriminated against on the basis of race when her overseas tour
was not extended on February 4, 2000. Complainant further claimed that
her appointment had not been extended in order to allow for the promotion
of her subordinate. Finally, complainant claimed that after a meeting
was held on November 16, 1999, during which she was allegedly informed
that her supervisor was considering not extending her appointment,
complainant called the EEO Manager �to get her opinion.� Complainant
claimed that the EEO manager told her that this was not an EEO matter
because the supervisor was under no obligation to extend the appointment.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact after finding that complainant had
failed to initiate counseling within the 45-day time limit. The agency
further found that the EEO manager had advised complainant to seek EEO
counseling if a personnel action was taken against her.
On appeal, the agency provides an affidavit by the current EEO manager
in which she provides information concerning the EEO posters on the
premises of the agency.
A review of the EEO Counselor's report reflects that complainant claims
that in November 1999, when she was allegedly first informed that her
supervisor was considering not extending her appointment, she contacted
the EEO manager and was purportedly informed that the agency supervisor
was under no obligation to extend complainant's contract beyond three
years. We note, however, that on appeal, complainant asserts a separate
reason for not contacting an EEO Counselor within forty-five days of the
date that she was informed on February 4, 2000, that her contract would
not be extended. Specifically, complainant asserts that on or about May
22, 2000, to May 26, 2000, she discovered that her subordinate was going
to be appointed to her position, and that it was at that time that she
realized that her extension denial was racially motivated. Specifically,
complainant stated that �I did not know for certain that [the subordinate]
would be appointed to my position until the end of May.� (emphasis added).
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation
period is triggered under the EEOC Regulations. See Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period is not triggered until a complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination have become apparent. Under these
circumstances, the Commission determines that complainant had or should
have had a reasonable suspicion of unlawful employment discrimination
contemporaneous with the denial of the contract extension; and that
she awaited some event that confirmed those suspicions in May 2000.
Complainant has failed to present adequate justification pursuant for
extending the limitation period beyond forty-five days. Accordingly, the
agency's decision to dismiss the complaint for failure to initiate contact
with an EEO Counselor in a timely fashion was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 4, 2001
__________________
Date