0120102193
06-24-2010
Gloria A. Tripp, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Gloria A. Tripp,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120102193
Agency No. 10-63-00217D
DECISION
Upon review, the Commission finds that the Agency's decision dated
March 12, 2010, dismissing Complainant's complaint due to untimely EEO
Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
The Agency's decision dismissing the complaint is AFFIRMED.
BACKGROUND
The record indicates that Complainant contacted an EEO Counselor
regarding her complaint on December 7, 2009. Unable to resolve the
matter informally, Complainant filed her complaint, dated January
12, 2010. Therein, Complainant alleged discrimination based on race
(Black) when on July 2, 2009, she was laid off from her position at the
agency and was not called back to work in August 2009. Complaint File
(COM), at 9. In its decision, the Agency stated that Complainant's EEO
Counselor contact with regard to the July 2, 2009 incident was beyond
the 45-day time limit set by the regulations.
ANALYSIS AND FINDINGS
Initially, we note that the Agency in its decision failed to address the
alleged incident concerning its failure to call back Complainant to work
on August 14, 2009. Thus, we will consider this omission as its dismissal
of the claim and this matter will be addressed herein forth accordingly.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires 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.
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 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
reasonably should have suspected discrimination, but before all the
facts that would support a charge of discrimination have become apparent.
Complainant claimed that she was the first Office Operations Supervisor
(OOS) to be terminated for lack of work on July 2, 2009. COM, at 22.
She further claimed that when there was a recall and that she received a
call with a job offer on August 14, 2009. Id.; COM, at 55. However, when
she returned the call on August 17, 2009, she was informed by the Agency
that the job was already filled. Id. Complainant contended that she did
not contact an EEO Counselor regarding the matter until December 7, 2009,
because she learned from her former coworker in December 2009, that the
Agency Assistant Manager for Administration made an untrue comment that
Complainant did not want to return to work. Counselor's Report, at 1.
Complainant also contended that it was not until December 2009, when she
went for an eligibility interview at the local employment office that she
learned that some of her former coworkers had been called back to work
but she was not. Id. However, the record indicates that Complainant
indicated during her EEO counseling that "she experienced discrimination
from the first day she was hired" at the Agency. COM, at 22.
After a review of the record, we find that Complainant knew or reasonably
should have suspected discrimination concerning the alleged incidents
at the time of the incidents, i.e., on July 2, 2009, and August 17,
2009, respectively. Thus, Complainant's December 7, 2009 EEO Counselor
contact with regard to the alleged matters was beyond the 45-day time
limit set by the regulations. On appeal, Complainant fails to present
adequate justification to warrant an extension of the applicable time
limit for contacting an EEO Counselor.
Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
6/24/10
__________________
Date
2
0120102193
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013