01A02510
04-13-2001
Gwendolyn Benton, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Gwendolyn Benton v. Department of the Navy
01A02510
April 13, 2001
.
Gwendolyn Benton,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A02510
Agency No. 00-00173-003
DECISION
Complainant filed a timely 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 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On September 21, 1999, complainant contacted the EEO office regarding
claims of discrimination based on race, sex, disability, and in reprisal
for prior protected activity. Informal efforts to resolve complainant's
concerns were unsuccessful. On November 9, 1999, complainant filed a
formal complaint claiming that she was discriminated against when:
(a) the Naval Research Laboratory (NRL) did not make provisions for
her to function more proficiently. There was no elevator and she was
denied leave when she became ill;
(b) Person A told Person B to place her on a Performance Improvement Plan
(PIP); and,
(c) She worked for two divisions at NRL and both divisions were sending
her letters stating that she yelled at a supervisor.
The agency issued a decision, on February 3, 2000, dismissing
the complaint. Specifically, claims (a) and (c) were dismissed for
untimely EEO Counselor contact. The agency determined that complainant
was aware of the forty-five day time limitation for contacting an EEO
Counselor because during counseling for a prior complaint complainant
acknowledged the time limit when it was presented to her as part of the
�Notice of Aggrieved Person's Rights and Responsibilities.� Moreover,
the agency stated that various NRL publications and notices clearly
informed employees of the time limit. The agency dismissed claim (b)
on the grounds that it states the same claim raised in a complaint filed
on January 27, 1997, and that has been decided by the agency in a final
decision issued on February 27, 1998.<1> Claim (c) was also dismissed
for failure to state a claim. The agency indicated that complainant
failed to establish how she was harmed when she was sent letters at home
stating that she yelled at a supervisor. Finally, the agency determined
that the alleged actions did not constitute a continuing violation since
none of the claims fell within the forty-five-day time limit.
Complainant presents no contentions on appeal. The agency requests that
the Commission affirm its decision.
Claims (a) and (c)
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.
The agency dismissed claims (a) and (c), for untimely Counselor contact.
According to the agency, complainant waited more than forty-five days
after the alleged events, which purportedly occurred in 1995 and 1996,
to contact the EEO office. Moreover, agency concluded that in light of
complainant's prior EEO activity, she was aware of the time limit.
The Commission finds that the record does not establish precisely when
the alleged incidents in claims (a) and (c) occurred. However, in
the formal complaint, complainant cited November 8, 1996, as the date
of the most recent alleged discrimination. Nowhere in the record has
complainant claimed that any events occurred within forty-five days of
her September 21, 1999 contact. Therefore, we find that complainant
waited beyond the time limitation to contact the EEO office and the
agency properly dismissed claims (a) and (c) pursuant to
29 C.F.R. � 1614.107(a)(2).
Because of our disposition, we do not consider whether claim (c) was
properly dismissed on other grounds.
Claim (b)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission. Here, a
review of the record establishes that claim (b) was raised by complainant
in her prior complaint, filed on January 27, 1997. Moreover, the matter
was addressed by the agency in its February 27, 1998 decision on the
prior complaint, finding no discrimination. Therefore, we find that
the agency properly dismissed claim (b), pursuant to � 1614.107(a)(1).
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby 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 13, 2001
__________________
Date
1We note that the number identified by the agency for the prior complaint,
Case 00-00173-003, is the same number assigned to the instant case.
We further note that this complaint relates to complainant's purportedly
forced resignation from agency employment on November 8, 1996.