0120102387
09-16-2010
Queen E. Colbert, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Queen E. Colbert,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120102387
Agency No. 2010-23149-FAA-05
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 9, 2010, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision dismissing Complainant's complaint.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's complaint.
BACKGROUND
At the time of events at issue, Complainant worked as a Logistics Management Specialist, FV-0346-G, at the Agency's Aeronautical Center, Logistics Radar Division in Oklahoma City, Oklahoma. Formal Complaint, at 1. On January 5, 2010, Complainant contacted an EEO Counselor. EEO Counselor's Report, at 2. On March 13, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African American), color (black), and reprisal for prior protected EEO activity when, on July 10, 2009, she heard her supervisor, the Radar Division Assistant Manager (White male), make a remark to another White male about a "two-fifths monkey" when she passed by them in the hallway. Id. at 3. Complainant alleged that this remark was made a few days before an EEOC hearing for another complaint that she had filed. Id.
The Agency dismissed Complainant's complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). Agency's April 9, 2010 Final Decision, at 2. The Agency found that the events alleged in Complainant's complaint occurred on July 10, 2009, but she did not contact an EEO Counselor until January 5, 2010, which was beyond the 45-day time limit. Id. at 2-3. In addition, the Agency dismissed Complainant's complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1) because she failed to show that she suffered an injury in fact with regard to a term, condition, or privilege of employment. Id. at 2.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, argues that she has clearly sustained an injury in fact because she felt embarrassed, harassed, and psychologically injured when her supervisor referred to her by a racial slur just four days before a hearing on her prior EEO complaint. Complainant's Appeal Brief, at 2, 4. In addition, Complainant argues that she was unaware of the timely filing requirements when the matter occurred and that she contacted an EEO Counselor within one week of learning of the filing deadlines. Id. at 5. The Agency did not file a response on appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part, that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides, in pertinent part, that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory.
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 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. 29 C.F.R. � 1614.105(a)(2).
In the instant case, we find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact. The record shows that the alleged discriminatory event occurred on July 10, 2009. Complainant therefore was required to initiate contact with an EEO Counselor by August 24, 2009 in order to fall within the 45-day limitation period, but Complainant did not initiate contact until January 5, 2010. EEO Counselor's Report, at 2.
On appeal, Complainant asserts that she was not aware of the 45-day limitation period when the alleged discriminatory event occurred on July 10, 2009. Complainant's Appeal Brief, at 5. Nevertheless, the Commission has consistently held that a complainant who has engaged in prior EEO activity is deemed aware of the time frames required for filing complaints in the EEO procedure. See Coffey V. Dept. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990); see also Kader v. U.S. Postal Serv., EEOC Request No. 05980473 (June 24, 1999). In her appeal brief, Complainant describes her prior involvement with the EEO process: she has filed a prior complaint, she has participated as witness in a complaint, and she is a member of a class action complaint. Complainant's Appeal Brief, at 1-2. Accordingly, we find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).1
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically address herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
September 16, 2010
Date
1 In view of this finding, we need not reach the question of whether Complainant's complaint states a claim.
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0120102387
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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