01991209_r
11-01-1999
Debra A. Martin, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Debra A. Martin, )
Appellant, )
)
v. ) Appeal No. 01991209
) Agency Nos. 980531
Daniel R. Glickman, ) 980765
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
On November 24, 1998, appellant filed a timely appeal with this
Commission from a final agency decision (FAD) dated October 23, 1998,
pertaining to her complaints of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In a formal complaint dated March 18, 1998
(Agency Number 980531), appellant alleged that she was subjected to
discrimination on the basis of race (African-American) when:
In 1982, appellant applied for a position at the county office and
subsequently was notified of her nonselection;
The agency failed to give appellant a performance award, resulting in
appellant's failure to receive a quality step increase in 1994 and 1995.
On or about January 27, 1998, appellant became aware that two Caucasian
co-workers, who received performance awards, were being paid at a
higher rate.
On June 12, 1998, appellant filed a separate formal complaint (Agency
Number 980765), alleging discrimination on the bases of race and in
reprisal for prior EEO activity when:
On April 29, 1998, appellant was denied training for the AG Credit
Training position.
In its October 23, 1998 FAD, the agency consolidated Agency Numbers
980531 and 980765. Therein, the agency accepted allegations (2)
and (3), but dismissed allegation (1) pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely counselor contact. Specifically, the
agency found that appellant's explanation for her delay, that she realized
the selectee was of a different race when she reviewed old paperwork,
was not adequate to toll the forty-five (45) day limitations period.
On appeal, appellant disputes the reasoning stated in the agency's FAD.
Appellant contends that she filed a complaint as soon as she learned
that the selectee did not have the proper qualifications for the
position. Appellant argues that the agency's notification of appellant's
nonselection is not relevant to the timeliness of allegation (1) because
appellant was not aware until later that the selectee did not have a high
school education. Appellant notes that she did not receive training
on the EEO process until 1995, and was not aware of applicable time
limitations until that time.
The record includes the Counselor's Reports for both complaints. In the
report for Agency Number 980531, appellant's initial counselor contact
is listed as January 27, 1998. The record also includes a letter dated
March 20, 1982, informing appellant that she was not selected for a
position with the agency.
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 Ball v. United States Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the time
limitation can be triggered before all the facts that support a charge
of discrimination have become apparent, but not until a complainant
reasonably suspects discrimination.
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.
Generally, the Commission has held that nonselection is a discrete
action that should trigger a reasonable suspicion of discrimination at
the time of its occurrence. See Farrell v. Department of Health and
Human Services, EEOC Request No. 05940981 (Aug. 3, 1995) (nonselection
triggers reasonable suspicion when appellant knows of the nonselection,
and is aware of who was selected); see also Guba v. Department of the
Army, EEOC Request No. 05970635 (Jan. 21, 1999). Appellant admits that
she had knowledge of the EEO process and filing deadlines over two years
prior to her present complaint. We find, further, that appellant's
contention on appeal is insufficient to justify an extension of the
applicable time limit for almost fourteen (14) years. See Baldwin
County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam)
("One who fails to act diligently cannot invoke equitable principles to
excuse lack of diligence"); Rys v. U.S. Postal Service, 886 F.2d 443,
446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff must
have diligently pursued her claim"). Therefore, the agency's dismissal
of allegation (1) was proper.
CONCLUSION
Accordingly, the agency's decision is 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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 1, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations