01a43247
12-10-2004
Joanne Wauahdooah, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Joanne Wauahdooah v. Department of Transportation
01A43247
December 10, 2004
.
Joanne Wauahdooah,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A43247
Agency No. 5-02-5064
Hearing No. 310-2003-05490X
DECISION
Complainant filed a timely appeal with this Commission from the final
action dated April 7, 2004, dismissing her formal 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.
During the relevant period complainant was employed as a Program Analyst,
FG-343-12, at the agency's Mike Monroney Aeronautical Center (AMC),
Logistics Center, Quality Systems Group in Oklahoma City, Oklahoma. On May
3, 2002, complainant initiated EEO Counselor contact, alleging that she
was the victim of unlawful employment discrimination on the bases of race,
color, age and in reprisal for prior EEO activity. Informal efforts to
resolve her concerns were unsuccessful and complainant filed the instant
formal complaint on June 18, 2002.
The record reflects that the agency accepted for investigation the
following claims
was complainant subjected to a hostile work environment based on her race,
color, age and in reprisal for prior EEO activity when:
(1) in December 2001, she was informed that she was not selected for
the position of Customer Service Field Representative, FG-301-13, under
Announcement No. AML-02-30-60432; and
(2) on February 7, 2002, she was informed that she was not selected
for the position of Quality Assurance Specialist, FG-1910-12, under
Announcement No. AC-AML-02-30-60430.
However, the record contains an affidavit wherein complainant stated that
the issue in her complaint was not that she was subjected to a hostile
work environment but that she was allegedly treated differently when she
was accused of creating a hostile work environment. Complainant then
made reference to the two non-selections identified above, as claims
(1) and (2).
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On March 17, 2004, the AJ issued an Order
of Dismissal. In her Order, the AJ dismissed claims (1) and (2) on the
grounds of untimely EEO Counselor contact. The AJ concluded that the
the alleged discriminatory events occurred in December 2001, and on
February 7, 2002, but that complainant did not initiate contact with an
EEO Counselor until May 3, 2002, which is beyond the forty-five (45) day
limitation period.<1> The AJ further concluded that complainant provided
no evidence indicating that her May 3, 2002 EEO contact was timely.
On April 7, 2004, the agency issued a final action implementing the
AJ's dismissal of complainant's complaint on the grounds of untimely
EEO Counselor contact.
The agency further noted that on June 23, 2003, complainant requested
that the instant complaint be amended to include two additional claims:
that she was discriminated against on the bases of race, color and in
reprisal for prior EEO activity when (a) in April 2003, information
regarding her EEO complaint was reported in the division Docushare
database; and (b) she was denied Lotus Notes training.<2> The agency
dismissed these claims pursuant to 29 C.F.R. �1614.107(a)(2), on the
grounds that complainant did not seek EEO counseling thereon. The agency
concluded that no further action would be taken regarding these matters,
and that complainant could contact a named agency Civil Rights Manager
in regard to them.
Non-selections
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 Commission notes that the alleged discriminatory events occurred
in December 2001 and on February 7, 2002, but that complainant did
not initiate EEO contact until May 3, 2002, well beyond the 45-day
limitation period. The Commission further notes that complainant, on
appeal, contends that it was not until March 20, 2002, when she became
aware that issues of discrimination could be addressed.
The Commission has found that because the limitation period for contacting
an EEO Counselor is triggered by the reasonable suspicion standard,
waiting until one has "supporting facts" or "proof" of discrimination
before initiating a complaint can result in untimely Counselor contact.
See Bracken v. United States Postal Service, EEOC Request No. 05900065
(March 29, 1990). The Commission finds that complainant had, or should
have had, a reasonable suspicion of unlawful employment discrimination
more than 45 days prior to her initial EEO Counselor contact. Complainant
failed to provide sufficient justification for extending or tolling the
time limitation.
Request to Amend Claims
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,
that the agency shall dismiss an entire complaint that raises a matter
that has not been brought to the attention of a Counselor.
The Commission finds that the agency properly dismissed the claims that
complainant raised in her June 23, 2003 request to amend her complaint
(information regarding her EEO complaint was reported in the division
Docushare database and denial of Lotus Notes training). The record
contains no evidence that complainant went through the informal process
in regard to these claims, or that these matters are like or related to
matters for which complainant underwent EEO counseling. The Commission
notes that the agency properly informed complainant that she may contact
the Civil Rights Manager at the AMC concerning these matters.
Accordingly, the agency's final decision implementing the AJ's decision
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
December 10, 2004
__________________
Date
1The Commission notes that the AJ inadvertently
identified complainant's initial EEO contact as May 6, 2002, instead of
May 3, 2002.
2Complainant's June 23, 2003 request to amend the instant complaint was
submitted to an Administrative Judge in Dallas, Texas, and was received
on June 30, 2003. The AJ who rendered the March 17, 2004 decision
referenced above did not address this request.