0120181530
09-06-2018
Giselle L,1 Complainant, v. Nancy M. Ware, Director, Court Services and Offender Supervision Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Giselle L,1
Complainant,
v.
Nancy M. Ware,
Director,
Court Services and Offender Supervision Agency,
Agency.
Appeal No. 0120181530
Agency No. CSOSAEEOF170041
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's March 8, 2018 dismissal of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Vocational Development Specialist, GS-12, in Washington, D.C.
On February 28, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian) and sex (female) when:
On July 20, 2017, she was dissatisfied by her Annual Performance Appraisal scores, which her Supervisor ("S1") based on subjective considerations, such as "recollections of conversation [indicating a] pattern of rewriting truthful situations," rather than the merits of her performance.
The Agency dismissed the matter as untimely, pursuant to 29 C.F.R. � 1614.107(a)(2).
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105.2
The regulation set forth under 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 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 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 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).
The alleged discrimination, dissatisfactory scores on an annual performance review, constitutes a personnel action because it relates to Complainant's employee record. Therefore, the limitation period for initiating contact with an EEO Counselor was triggered on July 20, 2017. Complainant did not contact an EEO Counselor until September 26, 2017, over 45 days after the alleged discriminatory act.
According to Complainant 's formal complaint, the most recent discriminatory act occurred on August 22, 2017. The "claims" section of her formal complaint includes part of an August 22, 2017 email to both S1 and the Director ("D1"). In the email, Complainant's account of her concerns when she became aware of her score, indicates that reasonable suspicion existed no later than July 20, 2017 that S1 and D1 were motivated by discrimination. Complainant reiterates her allegation about her annual performance appraisal, which, as previously discussed, is untimely. Complainant also alleges that S1 and D1 had yet to set up a meeting to discuss scoring with her, which she alleges S1 agreed to do on July 20, 2017.
Given that reasonable suspicion of both S1 and D1 existed since July 20, 2017, we find that Complainant reasonably suspected S1 and D1's alleged lack of response to be discriminatory well before she sent the August 22, 2017 email, and over 45 days prior to Complainant's initial contact with an EEO Counselor.
CONCLUSION
Accordingly, the Agency's dismissal of Complainant's complaint as untimely is AFFIRMED on alternate grounds pursuant to 29 C.F.R. � 1614.107(a)(2).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 6, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We decline to address the Agency's 29 C.F.R. � 1614.107(a)(2) analysis of untimely filing of the formal complaint, and instead based our � 1614.107(a)(2) analysis on untimely EEO contact.
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