01A01136
04-27-2000
Lenore Westberry, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Lenore Westberry v. Department of the Navy
01A01136
April 27, 2000
Lenore Westberry, )
Complainant, )
)
v. ) Appeal No. 01A01136
) Agency No. DON-99-31935-013
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's October 17, 1999 decision
dismissing the complaint for untimely EEO Counselor contact was proper
pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. �1614.107(a)(2)).<1>
The record reflects that complainant was an employee for an agency
department that operates a fleet of United States Naval Ships (USNS)
in direct support of the United States Navy throughout the world.
During the period at issue in the instant complaint, complainant worked
on a vessel identified as the USNS Saturn.
On April 15, 1999, complainant initiated contact with an EEO Counselor,
claiming that she had been discriminated against on the basis of sex when
on January 25, 1999, she was subject to sexually suggestive comments made
by the First Officer of the USNS Saturn. Complainant further claimed
that because she did not know what to do, she walked off the ship,
on February 13, 1999.
Subsequently, complainant filed a formal complaint claiming that she had
been discriminated against on the basis of sex when on January 25, 1999,
she was subject to sexual harassment by the sexually suggestive comments
made by the First Officer. Complainant further claimed that these
comments made her afraid and as a result, she walked off the ship.<2>
The agency issued a final decision dismissing the complaint for untimely
EEO Counselor contact. The agency found that after being allegedly
discriminated against on January 25, 1999, and walking off the ship on
February 13, 1999, complainant waited until April 15, 1999, to contact
an EEO counselor.
On appeal, complainant contends that she was unaware of the 45-day time
limit for timely contacting an EEO Counselor, because she missed the
EEO training provided by the agency in December 1998. Complainant states
that she "signed aboard the USNS Saturn on January 15, 1999".
In response to Complainant's appeal, the agency acknowledges that agency
records support her contention that she missed the training in question.
The agency argues, however, that complainant had constructive knowledge
of the applicable time limits because "displayed on the bulletin board
[of the] USNS Saturn is the agency's policy statement which specifically
states the time requirements for filing a complaint and the point of
contact" and complainant "was assigned to USNS Saturn as a utility man
on 16 January 1999 until she walked off the ship on 13 February 1999".
To support its contention, the agency provided a copy of its EEO poster
as well as an affidavit issued by the Equal Employment Opportunity
Specialist in which she states that said "information with respect to
the EEO complaint process which include time limits are posted on MSC
ships on the official bulletin board ... [including] the USNS Saturn".
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)) 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.
The Commission has held that to establish constructive notice an agency
must post EEO information containing notice of the time limits for EEO
Counselor contact and provide independent evidence of record supporting
such. Pride v. United States Postal Service, EEOC Request No. 05930134
(August 19, 1993). Concerning the instant complaint, the agency has met
its burden. Although complainant showed that she had not been provided
with training on EEO rules and regulations, we find that the information
on record, concerning the EEO posters that are posted at the USNS Saturn,
is sufficient to establish constructive notice of the 45-day time limit
for EEO counselor contact by Complainant, who worked at said facility
from mid -January 1999, to February 1999. Accordingly, the dismissal of
the complaint on the basis of untimely EEO counselor contact was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
April 27, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1 On 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.
2 The record shows that after Complainant walked off the ship, she was
charged Absent without Leave (AWOL) and terminated effective March 5,
1999. The record reflects that the issue of complainant's termination
was not raised during EEO counseling or in the instant formal complaint.