Joyce Klingler, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionApr 4, 2000
01986813 (E.E.O.C. Apr. 4, 2000)

01986813

04-04-2000

Joyce Klingler, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Joyce Klingler v. Social Security Administration

01986813

April 4, 2000

Joyce Klingler, )

Complainant, )

)

v. ) Appeal No. 01986813

Kenneth S. Apfel, ) Agency No. 98-0599-SSA

Commissioner, )

Social Security Administration, )

Agency. )

____________________________________)

DECISION

On September 11, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) dated August 13, 1998,

pertaining to her complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. <1> Because the agency failed to submit a

copy of the certified receipt, or any evidence, indicating the date

complainant received the final agency decision, the Commission will

exercise its discretion and accept complainant's appeal as timely.

See 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified as 29 C.F.R. �

1614.402(a)). In her complaint, complainant alleged that she was

subjected to discrimination on the basis of sex (female) when:

The upgrade of complainant's GS-105-12 Branch Manager position was

delayed from September 1995 to July 5, 1998.<2>

The agency dismissed complainant's complaint pursuant to EEOC Regulation

29 C.F.R. � 1614.105(a)(1), for untimely EEO Counselor contact.

Specifically, the agency claimed that the alleged discriminatory

act occurred in September 1995, but complainant did not contact an

EEO Counselor until June 16, 1998. Thus, the agency claimed that

complainant's initial counselor contact was beyond the applicable

forty-five (45) day limitation period for timely counselor contact.

On appeal, complainant states that it was not until April 1998, that she

suspected discrimination played a role in the denial of her upgrade.

Complainant states that at an April 1998 training session, she learned

that two male managers in Area VI, Southern Ohio District were upgraded

to GS-13's. Complainant indicates that it was at this point that she

suspected discrimination was involved in the previous denial of her

upgrade.

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. Department of the Navy,

EEOC Request No. 05970852 (February 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.

In the present case, we find that complainant's EEO Counselor contact was

untimely. Complainant's position was not upgraded for over two years.

We find that she failed to exhibit due diligence or prudent regard

for her rights, in view of the extended delay between September 1995,

when her position purportedly should have been upgraded, and June 1998,

when she first contacted the EEO Counselor. 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"). Further, even assuming that complainant did not

reasonably suspect discrimination until April 1998, her initial counselor

contact on June 16, 1998, was still beyond the applicable forty-five day

limitation period. Consequently, we find that complainant's EEO contact

untimely and the agency's decision to dismiss complainant's complaint

is 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

April 4, 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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 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.

2The record reveals that complainant was upgraded to a GS-13, effective

July 5, 1998.