Marion S. McLean, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
01985320 (E.E.O.C. Oct. 28, 1999)

01985320

10-28-1999

Marion S. McLean, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Marion S. McLean v. Department of the Army

01985320

October 28, 1999

Marion S. McLean, )

Appellant, )

)

v. )

) Appeal No. 01985320

Louis Caldera, ) Agency No. 9701H0010

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

Appellant filed an appeal with this Commission from a final agency

decision (FAD) concerning 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. and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. The FAD

was received by appellant on June 3, 1998. The appeal was postmarked June

23, 1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, amended.

On May 2, 1996 appellant contacted an EEO counselor regarding allegations

of discrimination based on age (63) and sex (female) when: (1) on

September 13, 1993 she received a notice of separation from her position

as a Supervisory Psychologist in accordance with a reduction in force and

(2) approximately three weeks later, she received inadequate counseling

regarding her rights as the spouse of a 100% disabled veteran with a 10

point preference. On June 13, 1996 appellant filed a formal complaint,

which was dismissed on April 11, 1997 for untimely counselor contact.

Appellant appealed to the Commission, which issued a decision on

March 6, 1998. The Commission found that appellant should have had a

easoanble suspicion of unlawful employment discrimination on Septemher

13, 1993, when she received the notice of separation. The Commission

remanded the complaint for a supplemental investigation by the agency.

The agency was ordered to investigate whether at the time/place of the

alleged discrimination the agency posted EEO information or in some manner

provided EEO information to the appellant that included reference to the

time limit for contacting a counselor. McLean v. Department of the Army,

EEOC Appeal No. 01974816 (March 6, 1998).

In response to the Commission's order, the agency issued another FAD on

April 21, 1998. The FAD dismissed appellant's complaint for untimely

counselor contact. Specifically, the agency relied upon statements from

EEO Officers and one of appellant's former colleagues in concluding that

appellant had constructive knowledge of the time limits for contacting

a counselor.

The Commission finds that the agency properly dismissed appellant's

complaint for untimely counselor contact. 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 Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988).

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, as noted by the Commission in its previous decision, we find that

appellant should have reasonably suspected discrimination when she

received the notice of separation on September 13, 1993. Appellant

contends, however, that she was unaware of the EEO time limitations.

The affidavits obtained during the supplemental investigation state that

EEO information (including the forty-five (45) day time limitation) was

posted in appellant's work area, distributed to employees, and appellant

herself may have been responsible for informing her employees about

EEO procedures. We find, therefore, that appellant had constructive

knowledge of the applicable time limits. See Santiago v. United States

Postal Service, EEOC Request No. 05950272 (July 6, 1995).

Accordingly, the agency's decision dismissing appellant's complaint for

failing to timely contact a counselor is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

10/28/1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations