01991903
09-22-2000
Dorothy L. Toman, Complainant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Dorothy L. Toman v. Department of the Treasury
01991903
09-22-00
.
Dorothy L. Toman,
Complainant,
v.
Robert E. Rubin,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01991903
Agency No. 99-4040
DECISION
On January 5, 1999, Dorothy L. Toman (hereinafter referred to as
complainant) initiated an appeal to the Equal Employment Opportunity
Commission (Commission) with regard to her complaint of discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The final agency action was dated December
11, 1998. Accordingly, the appeal is timely and is accepted by this
Commission in accordance with 29 C.F.R. � 1614.405.
Complainant contacted an EEO Counselor on September 22, 1998, and
subsequently filed a formal complaint, alleging that she had been
discriminated against in reprisal for prior EEO activity when an agency
attorney issued a letter on November 20, 1996, which questioned her
credibility and effectiveness as a Special Agent. The agency subsequently
dismissed the complaint on the grounds that complainant failed to timely
contact an EEO Counselor, and for failure to state a claim.
The EEOC Regulations require 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. 29 C.F.R. � 1614.105(a)(1). 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 Ball v. USPS, EEOC Request No. 05880247
(July 6, 1988). Thus, the limitations period was not triggered until a
complainant should reasonably have suspected discrimination, but before
all the facts that would support a charge of discrimination had become
apparent.
In the case at hand, complainant contended that she was not able to verify
the letter until August 1998. Nevertheless, complainant indicated,
in an affidavit executed in May 1997, that the Group Manager told her
about the letter. Complainant's attorney also referenced the letter in
correspondence dated August 7, 1997, noting that complainant had been
advised that the agency attorney had been �disturbed� by her testimony
during a co-worker's EEO hearing. The Commission has found that, since
the limitation period for contacting an EEO Counselor is triggered by
the reasonable suspicion standard, waiting until one has "supporting
facts" or "proof" of discrimination before initiating a complaint can
result in untimely Counselor contact. See Bracken v. USPS, EEOC Request
No. 05900065 (March 29, 1990). Accordingly it is the decision of the
Commission to AFFIRM the final agency decision.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
____09-22-00______________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Given the finding herein concerning the untimeliness of complainant's
contact with the EEO Counselor, we need not address whether the matter
at issue states a claim.