01982851
03-16-1999
Janice D. Felton, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Janice D. Felton v. National Aeronautics and Space Administration
01982851
March 16, 1999
Janice D. Felton, )
Appellant, )
)
v. ) Appeal No. 01982851
) Agency No. NCN-97-LaRC-A042
Daniel S. Goldin, )
Administrator, )
National Aeronautics and )
Space Administration, )
Agency. )
______________________________)
DECISION
On February 23, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on January 29, 1998,
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. In her complaint, appellant alleged that she
was subjected to discrimination on the bases of race (African-American)
and in reprisal for prior EEO activity when:
Appellant was given menial work in comparison to similarly situated
employees;
(b) Appellant was directed to move her office to a new location by March
2, 1997;
Appellant's present duties were taken away;
Appellant was denied training opportunities for Project Management
Development Process (PMDP) when her requests for approved secondary
travel to Northrup-Grumman, McDonnell Douglas, and the Kennedy Space
Center were denied;
Appellant was required to prepare weekly status reports, unlike other
PMDP trainees;
Appellant was given a poor performance appraisal for fiscal year 1996;
and
Appellant was held-back from training opportunities, while other
employees were promoted to GS-13.
The agency accepted allegations (a) - (c) for investigation, and dismissed
allegations (d) - (g) pursuant to EEOC Regulation 29 C.F.R. �1614.105(a),
for untimely EEO Counselor contact. Specifically, the agency found
that although appellant sought counseling twice prior to the May 16,
1997 contact that resulted in the present complaint, she informed the
EEO official that she did not wish to pursue a claim shortly after
her first contact of August 1996, and never filed a formal complaint
on the second contact (November 20, 1996) after receiving a Notice of
Right to File a Formal Complaint on December 19, 1996. Consequently,
the agency construed the May 16, 1997 as the initial counselor contact
for this complaint, and dismissed all allegations relating to events
that occurred more than forty-five (45) days prior to that date.
To confirm the untimeliness of each dismissed allegation, the agency
pointed to the Counselor's Report and appellant's formal complaint.
According to these sources, the travel denials raised in allegation (d)
occurred on August 30, 1996, October 17, 1996, February 21, 1997, and
March 10, 1997. Additionally, it appears that appellant received her
performance appraisal (allegation (f)) on October 30, 1996, submitted
her weekly reports beginning January 13, 1997 (allegation (e)), and
discovered that employees with less experience were being promoted to
GS-13 by August 30, 1996 (allegation (g)).
On appeal, appellant fails to address timeliness, but claims that
allegation (d) was defined incorrectly by the agency. Appellant contends
that allegation (d) should include reimbursement for travel expenses
that she incurred when a travel request was not granted. Appellant also
alleges that she was taken off of a PMDP training work assignment at the
Kennedy Space Center, which had been previously approved and scheduled
to begin February 1997, and was then denied a detail to Langley after
she filed her informal complaint.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation can be triggered
before all the facts that support a charge of discrimination have become
apparent, but not until a complainant reasonably suspects discrimination.
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 complainant commences the EEO process by contacting an EEO Counselor
and "exhibiting an intent to begin the complaint process." See Gates
v. Department of Air Force, EEOC Request No. 05910798 (November 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194 (May
24, 1990)). For purposes of timeliness, contact with an agency official
who is "logically connected with the EEO process" is deemed a Counselor
contact. Jones v. Department of the Army, EEOC Request No. 05900435
(September 7, 1990); see Kemer v. General Services Administration,
EEOC Request No. 05910779 (December 30, 1991).
Appellant does not dispute the incident dates identified by the agency
or contend that she lacked a reasonable suspicion of discrimination
at those times. We note that while appellant initiated EEO contact
prior to May 16, 1997, appellant abandoned both of her earlier counselor
contacts, i.e., she did not intend to pursue her complaint at those times.
See Juarez v. Department of Air Force, EEOC Request No. 01976151 (June
3, 1998) (holding that first contact with counselor does not count as
initial EEO counselor contact for timeliness purposes where complainant
seeks counseling, withdraws, and then re-initiates contact on the same
matter some months later.); Flassig v. Department of Treasury, EEOC
Request No. 01975786 (May 5, 1998) (Contact abandoned when complainant
waited two years after EEO contact to file a complaint). Consequently,
the agency correctly found that appellant's initial counselor contact
took place on May 16, 1997.
The Commission finds that the incident dates as expressed by the agency
in its final decision, and in the Counselor's Report, are correct.
Appellant does not dispute their accuracy. Consequently, the Commission
agrees with the agency that allegations (d)-(g) were not raised within
the forty-five (45) day limitation period for counselor contact.
Finally, we note that appellant raises new allegations on appeal.
Appellant is advised that if she wishes to pursue, through the EEO
process, the additional reprisal allegations she raises for the first time
on appeal, she shall initiate contact with an EEO counselor within 15 days
after she receives this decision. The Commission advises the agency that
if appellant seeks EEO counseling regarding the new allegations within
the above 15-day period, the date appellant filed the appeal statement in
which she raised these allegations with the agency shall be deemed to be
the date of the initial EEO contact, unless she previously contacted a
counselor regarding these matters, in which case the earlier date would
serve as the EEO counselor contact date. Cf. Qatsha v. Department of
Navy, EEOC Request No. 05970201 (January 16, 1998).
CONCLUSION
Accordingly, the agency's decision to dismiss allegations (d), (e),
(f), and (g) is AFFIRMED.
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 16, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations