01a02076
05-23-2000
Frieda M. Chaffins, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Frieda M. Chaffins, )
Complainant, )
)
v. ) Appeal No. 01A02076
) Agency No. 990359
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's December 10, 1999 decision
dismissing the complaint on the basis of untimely EEO counselor
contact is proper pursuant to the provisions of 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.107(a)(2)).<1>
The record shows that Complainant sought EEO counseling on October 31,
1998, claiming that she had been discriminated against on the bases of
sex, reprisal,<2> and age when in August 1997, she was not selected
for the position of secretary, GS-318-5, Announcement No. 24-87-224.
Complainant further claimed that on August 27, 1998, when she was
informed that the selectee stated he felt that he was not qualified
for the position in question, she decided to pursue the matter through
the EEO complaint process. Complainant also stated that she had tried
to resolve the situation through an Office of Inspector General (OIG)
inquiry, but without success. Subsequently, Complainant filed a formal
complaint concerning the non-selection issue.
The agency issued a final decision on December 10, 1999, dismissing the
complaint on the grounds of untimely EEO Counselor contact after finding
that Complainant's initial EEO Counselor contact �on October 1, 1998,<3>
was more than 397 days beyond� the 45-day time limitation provided by
EEOC Regulations. The agency further found that Complainant's pursuit
of an OIG inquiry did not toll the 45-day time limit.
On appeal, Complainant contends that she �filed within the 45 day time
frame� and questions the EEO Counselor's report.
We have previously held that internal appeals or informal efforts to
challenge an agency's adverse action and/or the filing of a grievance
do not toll the running of the time limit to contact an EEO counselor.
See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038
(June 9, 1989). Accordingly, Complainant's attempt to resolve her
concerns through and OIG inquiry is not sufficient to toll the 45-day
time limit. The record shows that in August 1997, Complainant was not
selected for the position in question. She did not contact an EEO
Counselor until October 1998. Based on the foregoing, we find that
Complainant's contention that she sought EEO counseling within 45 days
of the discriminatory event, is not supported by the record.
Moreover, we are unpersuaded by Complainant's assertion that she only
learned in August 1998 that the selectee was not qualified justifies a
delay in timely contacting an EEO Counselor. The non-selection occurred
in August 1997. Complainant should have sought EEO counseling within
45 days of the alleged discriminatory event. The Commission applies a
"reasonable suspicion" standard to the triggering date for determining
the timeliness of the contact with an EEO counselor. Cochran v. USPS,
EEOC Request No. 05920399 (June 18, 1992). Under this standard, the time
period for contacting an EEO Counselor is triggered when the complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).
The Commission notes that the basis of reprisal was not properly raised
by Complainant. Under EEOC Regulations in order for a complainant to
raise the basis of reprisal, he/she must have engaged in protected
EEO related activity. See Ramirez v. DOD, EEOC Appeal No. 01970989
(October 13, 1999). Complainant's alleged refusal to commit a felony
is not grounds for successfully raising the basis of reprisal.
Accordingly, the final agency decision was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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:
May 23, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 Complainant claimed that she had been subject to reprisal because she
�would not commit a felony�.
3 The final agency decision found that the initial EEO counselor contact
took place on October 1, 1998. The EEO Counselor's Report stated that the
initial contact occurred on October 31, 1998. Given our disposition of
the case, the disparity of the dates regarding the initial EEO Counselor
contact is not relevant, as both dates are well beyond the forty-five
day limitation period for timely contacting an EEO Counselor.