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.