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.