U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stephani G.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120152423 Agency No. 156841001402 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated June 10, 2015, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Dental Hygienist at the Agency's 2nd Dental Battalion, Naval Dental Clinic located in Camp Lejeune, North Carolina. On February 24, 2015, Complainant initiated EEO counselor contact, and on May 12, 2015, formal EEO complaint alleging that the Agency subjected her to discrimination on the basis of age when on December 12, 2014, Complainant was terminated from her position based on the recommendation of the Periodontics Department Head, who was also her supervisor. On June 10, 2015, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant initiated contact 74 days after the alleged discriminatory event occurred. The Agency acknowledged that Complainant stated to the EEO Counselor that she only pursued the EEO complaint process after hearing that a former colleague was facing similar problems, also based on age. The Agency stated, however, that Complainant had, or should have had, a reasonable suspicion of age discrimination well prior to her date of initial EEO contact. Specifically, the Agency stated that in Complainant's formal complaint, she states that she was harassed for over a year due to her age, and that she had received multiple counseling sessions to which younger hygienists had not been subjected. The instant appeal followed. On appeal, Complainant contends that the Department Head had an instant dislike for her when he reported to the clinic in August 2013. Complainant contends that prior to the Department Head's arrival she was considered an exemplary employee. Complainant contends that after August 2013, she was disciplined for trivial issues, some of which resulted in a one-week suspension. Complainant also contends that the Department Head specifically excluded her from work-related events in which most of the employees "who were 30 years old or younger" were involved. Complainant argues that she had only obtained newly discovered evidence on February 22, 2015, which purportedly triggered reasonable suspicion of discrimination only at that time. Complainant argues that she was unaware that other employees were being mistreated due to age, and it was only upon discovering this new information on February 22, 2015, that she felt she had "good cause" to pursue the EEO complaint process. Complainant contends that because she contacted the EEO Counselor within 45 days of this newly discovered information, her contact should be considered timely. ANALYSIS AND FINDINGS 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. The record discloses that the alleged discriminatory event (termination) occurred on December 12, 2014, but that Complainant did not initiate contact with an EEO Counselor until February 24, 2015. This action was more than forty-five days after the alleged discriminatory event. 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. Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). Complainant acknowledged in her EEO counseling session that she was aware of the 45-day time limit, but argued that she was not aware that her situation was a potential case of age discrimination until she heard of a colleague facing similar age discrimination issues at work. Complainant argued that since she was unaware of this information until February 22, 2015, her February 24, 2015 counseling session should be considered timely. However, we note that Complainant's formal complaint states that she "had been harassed for over a year by [the Department Head] due to [her] age." Complainant also explained various situations prior to her separation where she was purportedly targeted and treated differently from younger hygienists. Additionally, on March 11, 2015, Complainant filled out an Agency EEO Intake Form where she listed the dates of incidents as being from August 7, 2013 through to her termination on December 10, 2014.2 In sum, Complainant has not presented adequate justification pursuant to 29 C.F.R. §1614.105(a)(2), for extending the limitation period beyond forty-five days. CONCLUSION The Agency's final decision to dismiss the formal complaint for failure to initiate contact with an EEO Counselor in a timely fashion is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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), at Chap. 9 § VII.B (Aug. 5, 2015). 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations November 25, 2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Complainant listed the termination as December 10, 2014. Complainant's termination date is listed elsewhere in the complaint file as being December 12, 2014. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152423 2 0120152423