01a53099
07-12-2005
Lisa L. Barker, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Lisa L. Barker v. Department of the Army
01A53099
07-12-05
.
Lisa L. Barker,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A53099
Agency No. ARPICAT05JAN06585
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO counselor contact. On February 22, 2005, complainant filed a complaint
alleging that she was discriminated against on the bases of sex (female)
when:
1) She was assigned less important/visible/ lower level tasks than
the male intern in the office during the timeframe of January 31, 2000
through August 31, 2004;
2) She was tasked to do more secretarial/administrative type duties
during the timeframe of January 31, 2000 through August 31, 2004;
3) Her supervisor reassigned his workload to her during the timeframe
of January 31, 2000 through August 31, 2004;
4) She did not receive a cash award during August 2004;
5) She was sexually harassed by her supervisor during the time frame
of December 2002, and January 2003 through August 31, 2004.
The record indicates that complainant's first contact with the EEO Office
occurred on January 7, 2005. The agency issued a FAD dismissing the
complaint on the grounds that complainant sought EEO counseling in an
untimely manner. This appeal followed.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,
that the agency shall dismiss a complaint or a portion of a complaint that
fails to comply with the applicable time limits contained in � 1614.105.
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.
After a careful review of the record, we affirm the agency's dismissal of
complainant's complaint on the grounds of untimely counselor contact.
On appeal, complainant, among other things, maintained that: (1)
she brought the issues of discrimination and sexual harassment to the
attention of her supervisors; and (2) the agency, in dismissing her
complaint, did not give proper consideration to her mental condition.
With regard to complainant's first contention, complainant maintains
that she did not contact an EEO counselor within the required time
limitation period because she was, "trying to go through the proper chain
of command." The Commission, however, has long held that the utilization
of an internal process, i.e., going through management officials,
will not toll the limitation period for contacting an EEO counselor.
See Kramer v. USPS, EEOC Appeal No. 01954021 (October 5, 1995).
Complainant's second contention is that because of the harassment and
discrimination that she was subjected to, she "could not think straight or
intelligently� and that her �mental state of health deteriorated to the
point where [she] could no longer appear for work.� When a complainant
claims that a physical, psychiatric or psychological condition prevented
her from meeting a particular deadline, the Commission has held that,
in order to justify untimeliness, the complainant must have been so
incapacitated by the condition as to rendered them unable to comply
with the deadline. See Zelmer v. USPS, EEOC Request No. 05890164 (March
8. 1989); and Crear v. USPS, EEOC Request No. 05920700 (October 29, 1992).
Here, we find no evidence that would indicate that complainant was too
incapacitated to comply with the 45-day time limitation period during the
time that she was being subjected to the alleged acts of discrimination.
Likewise, we also note that complainant waited more than four (4 )months
after the discrimination ended before she initiated counselor contact.
Finally, complainant, in her appeal statement, indicated that she was
�completely embarrassed to come forward and have attention placed on
[herself]" and that she was �in fear of losing her job.�<1> These concerns
are not adequate justifications for failing to seek EEO counseling in
a timely manner. Accordingly, the agency's final decision dismissing
complainant's complaint 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
____07-12-05______________
Date
1The Commission has repeatedly held that mere
fear of reprisal is an insufficient justification for extending the time
limitation for contacting an EEO counselor. See Duncan v. Department
of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik
v. Department of Defense, EEOC Request No. 05930898 (December 9, 1993).