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.