Sherry L. Colden, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJan 15, 2009
0120083860 (E.E.O.C. Jan. 15, 2009)

0120083860

01-15-2009

Sherry L. Colden, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Sherry L. Colden,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120083860

Agency No. 086019101187

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated August 12, 2008, dismissing her 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. 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. In her complaint, complainant alleged

that she was subjected to discrimination on the basis of sex (female)

when on September 4, 2007, complainant was notified that she received a

beneficial suggestion award that complainant alleged was lesser-valued

than the quality step increase received by her male co-worker.

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 record discloses that the alleged discriminatory event occurred on

September 4, 2007, but complainant did not initiate contact with an EEO

Counselor until March 22, 2008, which is beyond the forty-five (45) day

limitation period. The record indicates that complainant was advised

in a letter dated September 4, 2007 that her beneficial suggestion

was acknowledged by the agency; however, she would not receive a cash

award for her suggestion as did her male coworker. The record further

indicates that complainant failed to contact an EEO Counselor regarding

her concerns until March 22, 2008 which is well beyond the time limit

for seeking counseling. In reaching this conclusion, the Commission is

not persuaded by complainant's argument that she only recently developed

a reasonable suspicion of discrimination when she received a letter

from the agency dated February 12, 2008, explaining why complainant's

beneficial suggestion did not result in complainant receiving a cash

award. The record indicates that complainant had or should have had a

reasonable suspicion of discrimination as early as May 2006, when she

first learned that her beneficial suggestion had been nominated for

recognition but not for a cash award.

On appeal, complainant has presented no persuasive arguments or

evidence warranting an extension of the time limit for initiating EEO

Counselor contact. Accordingly, the agency's final decision dismissing

complainant's complaint is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

January 15, 2009

__________________

Date

2

0120083860

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013