Marian L. Thomas, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionAug 23, 2000
01A00891 (E.E.O.C. Aug. 23, 2000)

01A00891

08-23-2000

Marian L. Thomas, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Marian L. Thomas v. Department of the Treasury

01A00891

August 23, 2000

.

Marian L. Thomas,

Complainant,

v.

Lawrence H. Summers,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A00891

Agency No. 99-4291

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dismissing some of her claims for untimely EEO Counselor

contact.<1>

On April 6, 1999, complainant contacted the EEO office regarding claims

of discrimination based on color, race, and sex. Informal efforts

to resolve complainant's concerns were unsuccessful. Subsequently,

on July 23, 1999, complainant filed a formal complaint.

By letter dated August 31, 1999, the agency requested that complainant

clarify the issues in her complaint. Based on complainant's September

10, 1999 response, the agency framed the claims as follows:

The agency failed to offer complainant a temporary assignment to the

BMF/IMF Work Leader position on March 3, 1999;

The agency failed to offer complainant a detail to BMF/IMF Work Leader

position on March 3, 1999;

3) Two males were placed in the Reviewer position in the BMF/IMF

Units in 1993;

The agency failed to select complainant for the IMF Work Leader position

under VA Number 94-0038. The record reflects that the purported

non-selection occurred in April 1994; and

The agency failed to select complainant for the IMF Supervisory position

under VA Number 93-0083. The record reflect that the purported incident

occurred in July 1993.

On October 12, 1999, the agency issued a decision dismissing claims 3, 4,

and 5 for untimely EEO Counselor contact. Claims 1 and 2 were accepted

for investigation. Specifically, the agency determined that complainant

should have developed a reasonable suspicion when the personnel matters

occurred in 1993 and 1994. According to the agency, complainant failed

to provide a sufficient reason for extending the forty-five-day time

limitation.

The record reflects that on February 9, 2000, complainant withdrew the

pursuit of the accepted claims raised in her formal complaint (Claims 1

and 2). By letter to the Commission dated February 11, 2000, the agency

indicated that it was �rescinding the partial dismissal letter dated

October 12, 1999, and hereby dismissing the above referenced complaint

in its entirety because it is untimely.�

Direct appeals of decisions partially dismissing a complaint are no

longer permissible under the regulations revised on November 9, 1999.

However, given the circumstances of this case, we shall consider the

agency's decision to dismiss claims 3 - 5 because there are apparently

no remaining claims from the instant complaint pending anywhere in the

administrative EEO process.

On appeal, complainant contends that claims 3 and 4 were improperly

dismissed.<2> Complainant argues that it was not until March 17,

1999, that she �discovered that she was being discriminated against.�

Complainant asserts that on that date, she spoke with a co-worker who

also produced documents supporting the agency's discriminatory practices.

Complainant argues that an inference of discrimination could only have

been raised after reviewing the personnel factors of other employees; that

these records were previously unavailable to her and that therefore, it

was only after speaking with a co-worker, �who had first-hand knowledge

from prior EEOC complaints and Union grievances involving similar

issues�, that complainant believed she had been discriminated against.

Complainant did not specifically address claim 5.

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 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.

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.

Here, the record shows that the alleged incidents addressed in claims

3 - 5 occurred in 1993 and in April 1994. Complainant, however,

did not contact the EEO office until April 6, 1999. We are not

persuaded by complainant's arguments that she did not believe she was

being discriminated against until she spoke with a co-worker in March

1999, who provided her with documents demonstrating discrimination.

The Commission has found that, since the limitation period for contacting

an EEO Counselor is triggered by the reasonable suspicion standard,

waiting until one has �supporting facts� or �proof� of discrimination

before initiating a complaint can result in untimely Counselor contact.

See Bracken v. U.S. Postal Service, EEOC Request No. 05900065 (March

29, 1990). Furthermore, we note that over five years elapsed between

the alleged discriminatory incidents and complainant's EEO contact.

The Commission has held that a complainant must act with due diligence

in pursuit of their rights. 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").

The Commission determines that complainant should have contacted an EEO

Counselor prior to April 6, 1999, or over five years after the incidents

in question.

Accordingly, the agency's decision to dismiss claims 3 - 5 for untimely

EEO Counselor contact was proper and is hereby 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

August 23, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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.

2Although complainant refers to �allegation 2" we note that the matter

is that presented as claim 3 in the agency's final decision. For purposes

of consistency we will refer to the issue as claim 3.