Davora L. Marshall, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
01991537 (E.E.O.C. Nov. 4, 1999)

01991537

11-04-1999

Davora L. Marshall, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Davora L. Marshall v. Social Security Administration

01991537

November 4, 1999

Davora L. Marshall, )

Appellant, )

)

)

v. ) Appeal No. 01991537

) Agency No. 99-0029-SSA

)

Kenneth S. Apfel, )

Commissioner, )

Social Security Administration, )

Agency. )

___________________________________)

DECISION

On December 16, 1998, appellant filed a timely appeal of a November

17, 1998 final agency decision, which was received by her on November

25, 1998, dismissing one allegation in her complaint, pursuant to 29

C.F.R. �1614.107(b), due to untimely EEO Counselor contact.

In its final decision, the agency identified the allegations of

appellant's October 16, 1998 complaint as whether appellant was

discriminated against based on her race (black) when: (1) on June 11,

1998, she learned that she was not selected for the Office of Programs and

Policy/Office of Communications Rotational Associate (Program Associate)

program, which was advertised under vacancy announcement number H-1791;

and (2) on July 24, 1998, she was asked to accept a detail to the Division

of Employment and Rehabilitation Programs, after having been denied a

reassignment to the Computer Staff since 1995, because management "could

not afford to lose her," which affected her career development.

The record indicates that on November 2, 1998, appellant further clarified

allegation (2) indicating that the main issue was the fact that she was

denied a reassignment to the Computer Staff since 1995, and not the fact

that she was detailed to the Division of Employment and Rehabilitation

Programs on July 24, 1998. The agency accepted allegation (1) for

investigation and dismissed allegation (2) due to untimely EEO Counselor

contact. The agency stated that appellant began seeking a reassignment

since 1995, but she did not contact an EEO Counselor until June 12,

1998, which was beyond the 45-day time limit set by the regulations.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination be brought to the attention of the EEO Counselor within

45 days of the alleged discriminatory event, or the effective date of

an alleged discriminatory personnel action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the limitation period

is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);

Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,

1988). Thus, the limitations period is not triggered until a complainant

should reasonably suspect discrimination, but before all the facts that

would support a charge of discrimination have become apparent.

The EEO Counselor's Report contains appellant's chronology of events

concerning allegation (2). Specifically, appellant indicated that on

September 29, 1995, June 4, 1997, August 21, 1997, and September 29,

1997, she was denied her requested reassignment to the Computer Staff, and

during these 3 years, five white individual were reassigned. Appellant

also indicated that in February 1998, she requested and was denied a

reassignment to the Computer Staff as a Technical Facilitator. There is

no evidence in the record that appellant was denied a reassignment after

February 1998. Thus, we find that appellant's June 12, 1998 EEO contact

with regard to the denial of a reassignment was beyond the 45-day time

limit set by the regulations. Upon review, we find that appellant knew

or should have reasonably suspected discrimination at the time of the

alleged incidents and/or when she learned of the reassignment of others

in 1995 through 1997.

In addition, we find that appellant failed to establish that allegation

(2) constituted a continuing violation since she did not allege

any incident which fell within the time period for contacting an EEO

Counselor. See McGivern v. United States Postal Service, EEOC Request

No. 05901150 (December 28, 1990); Starr v. United States Postal Service,

EEOC Appeal No. 01890412 (April 6, 1989). Although appellant asserts

on appeal that she requested a reassignment from an agency managerial

official every other month and a half, she does not provide any specific

date when she was denied a reassignment within the 45-day time limit.

Based on the foregoing, we find that appellant failed to present adequate

justification to warrant an extension of the applicable time limit

for contacting an EEO Counselor pursuant to 29 C.F.R. �1614.105(a)(2).

Accordingly, the agency's final decision is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

November 4, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations