Euwan Y. Godfrey, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation Agency.

Equal Employment Opportunity CommissionAug 16, 2000
01982298 (E.E.O.C. Aug. 16, 2000)

01982298

08-16-2000

Euwan Y. Godfrey, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation Agency.


Euwan Y. Godfrey v. Department of Transportation

01982298

August 16, 2000

.

Euwan Y. Godfrey,

Complainant,

v.

Rodney E. Slater,

Secretary,

Department of Transportation

Agency.

Appeal No. 01982298

Agency No. DOT-1-98-1015

DECISION

Complainant filed an appeal with this Commission from an agency decision

pertaining to her complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> The Commission accepts the appeal in

accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. �1614.405).

On August 27, 1997, complainant contacted the EEO office regarding

claims of discrimination based on race, color, national origin, and sex.

Informal efforts to resolve complainant's concerns were unsuccessful.

Subsequently, on November 5, 1997, complainant filed a formal complaint.

The agency framed the claims as follows:

1) Complainant was not allowed to take the Approach Lighting System

(ALS) exam in a classroom environment instead of as a direct study

course;

2) Complainant, as an Engineering Technician, was provided with fewer

options of courses to certify on to obtain an FG-12, than that of

Nav/Com and Radar technicians;

3) Complainant was denied further training, while a white male technician

who also failed a course was allowed to obtain further training;

4) Complainant was not able to obtain additional overtime at Logan

Airport; and

5) Complainant was placed on a Performance Improvement Plan (PIP).

On December 22, 1997, the agency issued a decision dismissing the

complaint for untimely EEO Counselor contact, finding that none of the

issues raised by complainant occurred within forty-five days of her

EEO Counselor contact. The agency found that complainant should have

reasonably suspected discrimination and sought counseling in July 1996,

after failing the second exam and being placed on the PIP. Moreover, the

agency noted that when complainant was told that she had not successfully

completed the PIP, during a May 7, 1997 meeting, she indicated her concern

that she was being treated differently. In addition, the agency concluded

that the most recent date of discrimination cited by complainant in her

formal complaint, October 22, 1997, was not a new event but merely �a

reiteration of the conversation [complainant] had with [her] supervisor

on March 18, 1997.�

On appeal, complainant reiterates the merits of her claims. No new

contentions, regarding the timeliness of her EEO Counselor contact,

are presented.<2>

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be

codified and hereinafter referred to as 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.

A review of the record reflects that the alleged incidents occurred

more than forty-five days before complainant's August 27, 1997 EEO

Counselor contact. In a letter to the agency, dated January 3, 1998,

complainant contends that she contacted the EEO office after she became

aware of the discrimination.

Complainant stated in a January 3, 1998 letter to an agency official

that she did not go to a Counselor in April 1997 �due to [her] patience

in waiting for management to sign me up for the Nav/Com course.�

Further, she did not contact the Counselor in May 1997, because her

current supervisor was leaving and a new supervisor was coming in.

According to complainant, it was not until July that she �saw and heard

that nothing would be done;� and that she contacted the EEO office once

she �believed that [she] needed outside help....� The Commission has

consistently held that utilization of internal agency procedures, union

grievances, and other remedial processes does not toll the time limit

for contacting an EEO Counselor. See Kramer v. U.S. Postal Service, EEOC

Appeal No. 01954021 (October 5, 1995); Williams v. U.S. Postal Service,

EEOC Request No. 05910291 (April 25, 1991).

The record also contains a chronology of events by complainant which

shows that on May 7, 1997, during a meeting with management, she

spoke about the �double standards displayed to me� and �unfair training

treatments.� Complainant states that, in response, agency officials told

her that they would look into her concerns, but that they never did.

Based on a review of the record, we find that complainant reasonably

suspected discrimination more than forty-five days before she contacted

the EEO office. We find that complainant has not presented sufficient

justification for extending or tolling the time limit for contacting an

EEO Counselor.

Accordingly, the agency's decision dismissing the complaint for untimely

EEO Counselor contact was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

August 16, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2We note that in a subsequent statement submitted to the Commission, dated

April 19, 1998, complainant raises several new claims of discrimination

that relate to leave and promotion. Complainant is advised that she

should promptly contact an EEO Counselor if she wishes to pursue these

claims.