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.