01983202
03-05-1999
Helen L. Phillips, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Helen L. Phillips, )
Appellant, )
)
)
v. ) Appeal No. 01983202
Bruce Babbitt, ) Agency No. FNP 98-017
Secretary, )
Department of the Interior, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning 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. The final agency decision was dated February
11, 1998. The appeal was postmarked March 10, 1998. Accordingly,
the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency erred in dismissing the
complaint for untimely EEO Counselor contact and because the complaint
was untimely filed.
BACKGROUND
The record indicates that on August 20, 1997, appellant initiated
contact with an EEO Counselor regarding her complaint. Informal efforts
to resolve her concerns were unsuccessful. On November 4, 1997, the
appellant filed a formal complaint, alleging that she was the victim
of unlawful employment discrimination on the basis of her sex (female)
and reprisal when:
the agency issued a memorandum dated February 4, 1997 regarding remedial
firearms training for the appellant
On February 11, 1998, the agency issued a final decision dismissing
appellant's complaint for failure to contact an EEO counselor within
45 days of the incident and for failure to file a formal complaint in a
timely manner. Specifically, the agency found that the appellant knew of
the subject memorandum as of June 17, 1997 and should have contacted an
EEO Counselor no later than August 1, 1997 about a discrimination claim.
The agency also found that the appellant received her notice of final
interview on September 29, 1997 which required her to file a formal
complaint no later than October 14, 1997. The appellant instead filed
her formal complaint on November 5, 1997 past the fifteen day time period.
The appellant does not contest that she filed her formal complaint outside
the time required by the regulations but contends that she had good reason
for missing the date. She also contends that she was not aware of the
memorandum in question until she received a copy of it in "mid-August".
ANALYSIS AND FINDINGS
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 (EEO) 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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
We believe that the appellant was aware of the existence of the
memorandum in question no later than June 17, 1997 when it was raised
at a hearing at which the appellant was present. The record fully
establishes the appellant's awareness of the memorandum because she
discusses her surprise and dismay about it being raised during the
hearing at considerable length. We think it was unreasonable for the
appellant to then wait until she received an actual copy of the memorandum
before contacting an EEO Counselor.
On the issue of the untimely filing of the formal complaint, EEOC
Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right to
file a complaint required by 29 C.F.R. �1614.105(d), (e) or (f).
Moreover, EEOC Regulation 29 C.F.R. �1614.107(b) 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, 1614.106,
and 1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
The appellant admits that her complaint was filed late but argues that the
time requirement should be waived because she was required to close on a
house on the same day that she received the Notice of Final Interview,
and because she received a notice of termination from her employment
the next day. She argues that this required her to move out of ranger
quarters immediately causing her to pack away the notice and lose track
of its whereabouts. Assuming these facts to be true, this still left
the appellant with sufficient time in our view, within which to file
her complaint. Therefore, we are not persuaded that the time limits
should be waived in this instance.
CONCLUSION
Accordingly, we AFFIRMED the agency's dismissal of the complaint for
the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
March 5, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations