0120065155
02-22-2007
Kimberly L. Martin, Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.
Kimberly L. Martin,
Complainant,
v.
Alphonso Jackson,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01200651551
Agency No. EEO06069
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated August 7, 2006, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. In her complaint,
complainant alleged that she was subjected to discrimination on the bases
of sex (female) and age (58) when she learned she was not referred for
the position of Supervisory Enforcement Analyst on November 23, 2004,
and when she was informed she was not selected for another Supervisory
Enforcement Analyst position on December 10, 2004.
The record discloses that the last alleged discriminatory event occurred
on December 10, 2004, but complainant did not initiate contact with an
EEO Counselor until April 12, 2006, which is well beyond the forty-five
(45) day limitation period required by 29 C.F.R. � 1614.107(a)(2).
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. Complainant has argued that she did not initiate EEO counseling
until April 2006 because she had to wait until she received the agency's
responses to several Freedom of Information Act (FOIA) requests she
made concerning the selections at issue.2 The last FOIA response was
received on March 27, 2006, and complainant contacted the EEO counselor
on April 12, 2006.
However, the Commission applies a "reasonable suspicion" standard,
as opposed to a "supportive facts" standard, to determine when the
start of the forty-five 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. There is no dispute in this
case that complainant was informed of her nonselection, as well as
who was selected, by no later than December 10, 2004. Even if she
had insufficient information to suspect discrimination at that point,
the record establishes that she received a response to one of her FOIA
requests on April 18, 2005, which contained the selectee's application
and supporting documents. At this point, complainant had sufficient
information to compare her qualifications for the position in question to
those of the selectee. This, with her knowledge of the selectee's gender
and age, was sufficient allow her to form a reasonable suspicion about
whether she had been the victim of discrimination. Therefore, we conclude
that, in this case, complainant believed she had been discriminated by
no later than her receipt of the agency's April 18, 2005 FOIA response,
and the agency's subsequent FOIA responses only added supportive facts
to bolster her suspicion. Complainant, however, waited for another year,
until April 2006, to initiate EEO counseling.
Accordingly, after a thorough review of the record and consideration of
all complainant's contentions on appeal, including those not specifically
addressed herein, the agency's final decision dismissing complainant's
complaint on timeliness grounds is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 22, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 In her appeal, complainant also complains about the way her FOIA
requests were handled. The Commission has held that it does not have
jurisdiction over the processing of FOIA requests. Instead, persons
having a dispute regarding such requests should bring any appeals about
the processing of his or her FOIA requests under the appropriate FOIA
regulations. Gaines v. Department of the Navy, EEOC Request No. 05970386
(June 13, 1997).
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0120065155
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065155