01A35382_r
07-21-2004
Surjit K. Bhella, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Surjit K. Bhella v. Department of the Navy
01A35382
July 21, 2004
.
Surjit K. Bhella,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A35382
Agency No. DON-03-45610-001
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 3, 2003, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
The record reveals that complainant filed a formal complaint on October
16, 2002, alleging that she was subjected to discrimination on the
bases of race (Asian), national origin (Indian), religion (Sikhism),
sex (female), disability (unspecified), and reprisal for prior EEO
activity, when:
Complainant discovered on November 20, 2000, that PERS 48 and Naval
Consolidated Brig Charleston Management Officials, through planned
actions took duties away from her position of record and systematically
added them to the position of a named co-worker and non-competitively
promoted him to the GS-13 level through accretion of duties.
In April 2001, complainant returned to work after six years of medical
leave and was informed by her supervisor that her position of record
had been eliminated;
On May 24, 2001, complainant was constructively discharged when she
received a SF-50 dated May 11, 2001, terminating her employment at the
Naval Consolidation Brig Charleston.
In a December 16, 2002 decision the agency dismissed issue (a) pursuant to
29 C.F.R. � 1614.107(a)(1), for raising the same claim that was pending
before or decided by the agency or Commission. Additionally, the agency
dismissed issues (b) and (c) pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. Complainant appealed the agency's
December 16, 2002 decision to the Commission. In EEOC Appeal No. 01A31528
(July 22, 2003), the Commission affirmed the dismissal of issues (b)
and (c) and reversed the dismissal of issue (a) and remanded it to
the agency for further processing. Complainant filed a request for
reconsideration of the Commission's decision in 01A31528 on August 8,
2003. The Commission issued a decision in EEOC Request No. 05A31183
(June 29, 2004), dismissing complainant's request for reconsideration on
the grounds that complainant filed a civil action on the same incidents
identified in issues (b) and (c).
The agency issued a decision on September 3, 2003, dismissing issue (a)
for untimely EEO Counselor contact. The agency noted that in an August
13, 1996 letter, complainant stated �they promoted [Person A], Program
Evaluator, while eliminating [her] position.� The agency also stated
that in a July 12, 2001 note, complainant advised the EEO Counselor
that �[her] concerns are addressed in [her] Aug[ust] 1996 complaint
regarding Person A's promotion and discrimination against [her]. [She]
will not pursue this complaint with you but will be addressed in the
Federal court.� The agency claimed that complainant withdrew her original
complaint and then initiated another informal complaint in November 2000,
regarding the same issue. The agency argued that complainant failed to
bring the issue to the attention of an EEO Counselor within forty-five
days of when she became aware of Person A's promotion.
Complainant filed the present appeal in which she acknowledges that she
did file a complaint on August 13, 1996, addressing Person A's promotion.
She argues, however, that at that point her claim was �hearsay� and
that she had no factual information to prove her claim. She states
that once the EEO Office dismissed this portion of her 1996 complaint,
she did not pursue it any further. Further, complainant argues that she
was unaware of the reasonable suspicion standard until she received the
EEOC's July 22, 2003 decision. Further, complainant states that issue
(a) was not part of her suit in federal court and thus, she could not
have addressed it in that forum. Complainant states that it was not
until November 20, 2000, that she came to know the facts of Person A's
promotion. She states that she thereafter promptly contacted the EEO
Office to pursue this matter.
The record contains complainant's August 13, 1996 letter to the
EEO Director, HRO, Charleston, SC, regarding her �Retaliation and
Discrimination Complaint against Navy Consolidated Brig, and PERS-84.�
In her letter, complainant states that she received an August 1, 1996
letter from the agency that her position as a Program Evaluator has
been eliminated. In the August 13, 1996 letter complainant states that
her counterpart, Person A's position at Navy Brig Miramar, California is
not eliminated. Complainant explains in the August 13, 1996 letter that
the agency recently promoted Person A, Program Evaluator, with MS level
education to a GM-13 while eliminating her position. As a remedy to her
instant complaint, complainant requests reinstatement of her position
and promotion to a GM-13, as she states occurred with her counterpart
in Miramar.
The record contains complainant's July 12, 2001 note to Person B of
the EEO Office in which complainant states that it appears that her
concerns are addressed in her August 1996 complaint regarding Person
A's promotion and she states she will not pursue this complaint with
EEO but will pursue the matter in federal court or with the MSPB.
Upon review, we find the agency properly dismissed issue (a) for untimely
EEO Counselor contact. Based on a review of the record we find that
complainant was aware of Person A's promotion in August 1996, and
reasonably suspected or should have reasonably suspected discrimination
at this time. Upon review of the record we find that complainant did
not initiate counselor until, at the earliest, November 22, 2000, which
is beyond the applicable limitations period. We find complainant failed
to present adequate evidence to support an extension of the applicable
limitations period.
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
July 21, 2004
__________________
Date