0120100264
03-21-2011
Dian G. Bower, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Dian G. Bower,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120100264
Agency No. ARSILL09MAY02329
DECISION
Complainant filed an appeal with this Commission from an Agency final decision, dated September 18, 2009, dismissing her formal 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. The Commission accepts the appeal in accordance with 29 C.F.R. 1614.405.
BACKGROUND
During the relevant time, Complainant worked as a Secretary at the Reynolds Army Community Hospital in Ft. Sill, Oklahoma. On May 28, 2009, after learning that she may have been subjected to age discrimination by hiring panel members, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. On September 9, 2009, Complainant filed a formal complaint.
In the instant final decision, the Agency framed the claim as follows:
Complainant alleged discrimination on the basis of age when she was not selected for the following positions at Reynolds Army Community Hospital:
a. SWEK09217272 Health System Specialist, YA-02
b. SWEK09132417 Health System Specialist, YA-02
c. SWEK08961950 Health System Specialist, YA-02
d. SWEK08961510 Health Systems Specialist, YA-02
e. SWEK08943574 Health System Specialist, YA-02
f. SWEK08771555 Administrative Specialist, YA-0301-02
g. SWEK08026986 Human Resource Specialist, YA-1
h. SWEK09045881 Supv Human Resource Asst., YC-0203-01
The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency reasoned that all the positions, except for the one identified in claim (a), were advertised and had selections made in 2008. In claim (a) the vacancy was filled in March 2009. The Agency therefore determined that Complainant's May 28, 2009 EEO Counselor contact was beyond the forty-five day time limitation.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that she was denied an investigation. She acknowledges that she first met with the EEO Manager on May 28, 2009, and explained that "this has been going on for the last two or three years (continuous)." According to Complainant, she met with her chain of command on three occasions between March 2009 and May 2009 regarding her claims. Her chain of command directed her to the EEO office. Finally, Complainant notes that when she filed her formal complaint on September 9, 2009 she also told the EEO office that she had applied for two more positions and was not selected.
In response, the Agency maintains that its dismissal was proper. The Agency argues that to the extent that Complainant has alleged a continuing violation, the claims raised were separate employment actions and Complainant should have contacted the EEO Counselor when she first learned she was not selected. Moreover, the Agency argues that Complainant listed several reasons why she believes the non-selections were based on her age. The Agency asserts that most of these events occurred more than forty-five days before her contact with the EEO Counselor. The Agency also argues that even if the actions did comprise a continuing violation, Complainant failed to identify any act that occurred within forty-five days of her contact.
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. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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.
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.
Complainant does not dispute that her contact occurred more than forty-five days after all of the alleged events. While her reference on appeal to "continuous" events may be arguably construed as alleging a continuing violation, there is no timely claim to base such an analysis on. Further, the alleged non-selections were discrete events that should have raised Complainant's reasonable suspicions at the time she learned she was not chosen. In fact, the record reflects that Complainant had suspected discrimination at that earlier time, but went through her chain of command instead of the EEO process. However, she cannot rely on these alternative efforts to extend the forty-five day time limit for contacting an EEO Counselor. The Commission has held that the internal appeal of an agency action does not toll the running of EEO time limitations. See Hosford v. Veterans Administration, EEOC Request No. 05890038 (June 9, 1989). Therefore we find that the Agency's dismissal pursuant to 29 C.F.R. 1614.107(a)(1) was proper.
CONCLUSION
The Agency's decision dismissing the instant formal complaint on the grounds of untimely EEO Counselor contact is AFFIRMED.
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
March 21, 2011
__________________
Date
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0120100264
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100264