01a40344
04-29-2004
Debra Levels-McDavid, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Debra Levels-McDavid v. Department of Labor
01A40344
April 29, 2004
.
Debra Levels-McDavid,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A40344
Agency No. 03-06-093
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact.
On January 29, 2003, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful.
In her formal complaint, filed on April 23, 2003, complainant alleged
that she was subjected to discrimination on the bases of race, sex ,
and in reprisal for prior EEO activity when she was not selected for
the position of Safety and Occupational Health Manager (Ergonomist),
GS-0018-13, as advertised under Vacancy Announcement Nos. DD-2-0112
and DD-02-139.
In its final decision, dated September 22, 2003, the agency dismissed the
complaint on the grounds of untimely EEO Counselor contact. The agency
determined that complainant received a notice of non-selection for the
position advertised under Vacancy Announcement No. DD-2-0112 by letter
dated November 8, 2002; and that she received a notice of non-selection
for the position advertised under Vacancy Announcement No. DD-02-139
by letter dated November 29, 2002. Regarding Vacancy Announcement
No. DD2-02-0112, the agency informed complainant the employing office
returned the Certificate of Eligibles for this position without action.
Regarding Vacancy Announcement No. DD-22-0139, the record contains an
internal agency email exchange dated November 20, 2002, wherein an agency
EEO official stated that the �pool of candidates is too small� and that
the agency would �re-announce in the future.�
The agency determined that complainant did not contact an EEO Counselor
until January 29, 2003, beyond the 45-day time limit set by the
Regulations for both subject positions.
On appeal, complainant argues that on January 15, 2003 and January 29,
2003, she obtained additional information to support her suspicions of
discrimination, thereby rendering timely her January 29, 2003 initial
EEO Counselor contact. Specifically, complainant asserts that in
January 2003, she first received a copy of the agency November 20,
2002 email referenced above, regarding the application pool being too
small. Complainant further asserts that in January 2003, she reviewed
certificates from other announcements, wherein selections had been
made from a pool of fewer than five candidates, although the subject
positions had more than five candidates. Complainant claims that she
then determined that the agency conspired to prevent her promotion.
Complainant asserts that the �confirmation of the reasoning of the filing
of the [complaint] was clarified within my [January 2003] interview.�
Complainant further asserts that the EEO complaint process was initiated
from the date that she �discovered and confirmed� that she was the victim
of discrimination due to cancellation of job announcements due to the
application pool purportedly being too small.
The record discloses that the most recent alleged discriminatory event
occurred on November 29, 2002, but that complainant did not initiate
contact with an EEO Counselor until January 29, 2003, which is beyond the
forty-five (45) day limitation period. On appeal, complainant presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. The Commission determines
that complainant's arguments on appeal reflect that her initial EEO
Counselor contact occurred after she �confirmed� that she was the victim
of unlawful employment discrimination. Waiting until one has proof of
discrimination prior to pursuing the EEO complaint process can result
in untimely EEO contact. See Bracken v. USPS. EEOC Request No. 05900065
(April 29, 1990).
The agency's final decision dismissing complainant's complaint on the
grounds of untimely EEO Counselor contact was proper and 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
April 29, 2004
__________________
Date