01975888
11-20-1998
Ingrid D. Wright, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Ingrid D. Wright v. Department of Transportation
01975888
November 20, 1998
Ingrid D. Wright, )
Appellant, )
)
v. ) Appeal No. 01975888
) Agency No. DOT 4-97-055
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed two allegations in appellant's complaint, pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b), for failure to initiate contact with
an EEO Counselor in a timely manner, and one allegation, pursuant to 29
C.F.R. �1614.107(a), for failure to state a claim. Appellant alleged
that she was subjected to discrimination on the bases of race (Black)
and sex (female) when:
On March 20, 1997, appellant was placed on an ODP by her supervisor,
and since the issuance of the ODP, she received inadequate training
and supervisory assistance with her IDP development;
On or about April 10, 1997, a coworker referred to appellant as "Girl;"
In 1992, appellant was hired as an 855 series Engineer rather than an
Environmental Technician ("ET");
In 1994, appellant did not receive adequate recognition for teaching
a DF-100 course; and
On an unspecified date, a grievance appellant filed on October 31,
1995, was dismissed by management.
On June 24, 1997, the agency issued a final decision accepting allegations
(1) and (2), and dismissing allegations (3) through (5), pursuant to 29
C.F.R. �1614.107(b), for failure to initiate contact with an EEO Counselor
in a timely manner. Specifically, the agency determined that appellant's
April 25, 1997 initial EEO Counselor contact occurred more than forty-five
(45) days from the dates of the alleged discriminatory actions identified
in allegations (3) through (5), and was, therefore, untimely.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
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.
On appeal, appellant contends that she was unaware that the agency's
failure to hire her as an ET was discriminatory until she found government
orders in late March or mid April which explained the Engineering Series.
Similarly, appellant contends that she was unaware that the agency's
failure to provide her adequate recognition for teaching a DF-100 course
was discriminatory until she discovered that others with whom she was
hired in 1992, had been promoted. We find, however, that appellant's
contentions are insufficient to justify an extension of the applicable
time limit for almost five and three years, respectively. See Baldwin
County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam)
("One who fails to act diligently cannot invoke equitable principles to
excuse lack of diligence"); Rys v. U.S. Postal Service, 886 F.2d 443,
446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff
must have diligently pursued her claim"). Accordingly, we find that the
agency's final decision dismissing allegations (3) and (4) was proper.
In allegation (5), appellant alleged that the agency engaged in
discrimination when it dismissed a grievance she filed. We find that this
allegation constitutes a collateral attack on the outcome of appellant's
grievance. The Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding.
Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994);
Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). The proper
forum for appellant to have raised her challenges to actions which occurred
during the grievance process was in that process itself. It is
inappropriate to now attempt to use the EEO procedure to collaterally
attack the results of the grievance process. Consequently, we find that
allegation (5) was properly dismissed pursuant to 29 C.F.R. �1614.107(a),
for failure to state a claim.
Accordingly, the agency's final decision dismissing allegations (3)
through (5) is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Nov. 20, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations