Juanita Johnson, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 1, 2000
01984583 (E.E.O.C. Feb. 1, 2000)

01984583

02-01-2000

Juanita Johnson, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Juanita Johnson, )

Complainant, )

)

v. ) Appeal No. 01984583

) Agency No. BGANFO9801I0110

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

On May 14, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) issued on April 14, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. �621 et seq.<1> The Commission accepts complainant's

appeal in accordance with EEOC Order No. 960.001.

The record reflects that on January 28, 1998, complainant initiated

contact with an EEO Counselor. During the counseling period, complainant

claims that on November 20, 1997, she was counseled in writing about her

tardiness when a tardy younger, male employee was not similarly counseled

in writing. Moreover, the EEO Counselor's report shows, that subsequent

to receiving the written notice for being late, she promptly asked the

younger male counter-part if he too was provided a written notice and

he responded in the negative.

Attempts to resolve this matter informally failed, and on March 24, 1998,

complainant filed a formal complaint. Therein, complainant claims that

she was the victim of unlawful employment discrimination on the bases

of her race (black), gender (female), and age (over forty) with regard

to the matters for which she underwent counseling, discussed above.

The agency, on April 14, 1998, issued a final decision dismissing the

complaint for failure to initiate timely contact with an EEO Counselor.

The agency found that the claimed discriminatory events addressed in

the complaint occurred on and prior to November 20, 1997, and that

complainant's initial EEO contact on January 28, 1998, was more than

forty-five days after the matters raised in the complaint purportedly

occurred.

On appeal, complainant's statement reflects that prior to receiving the

written reprimand for being tardy, she was aware of many incidents in

which her younger male counter-part had been treated more favorably.

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.

In the present case, the record reflects that shortly after receiving

the her written notice, complainant asked her co-worker, whom she claims

is favored, if he was also written up for being tardy. In addition,

complainant's statement in support of her appeal indicates that prior

to her written reprimand in November 1997, complainant believed that the

above mentioned co-worker was being treated more favorably. In applying

the �reasonable suspicion�standard , it is clear that complainant should

have had a reasonable suspicion of discrimination at the very least,

on November 20, 1997, when she received her written reprimand. Indeed,

it appears that she did have such a suspicion based on her inquiry of

the identified co-worker. Accordingly, the agency's decision dismissing

complainant's complaint for failure to initiate timely contact with an

EEO Counselor was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

February 1, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.