Mary A. Naulty, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionOct 20, 1999
01991369 (E.E.O.C. Oct. 20, 1999)

01991369

10-20-1999

Mary A. Naulty, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Mary A. Naulty v. Social Security Administration

01991369

October 20, 1999

Mary A. Naulty, )

Appellant, )

) Appeal No. 01991369

v. ) Agency No. 98-0383-SSA

)

Kenneth S. Apfel, )

Commissioner, )

Social Security )

Administration, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision (FAD) concerning her complaint of unlawful employment

discrimination in violation of the Age Discrimination in Employment Act

of 1967, as amended, 29 U.S.C. � 621 et seq. The appeal is accepted in

accordance with EEOC Order No. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for untimely contact with an EEO Counselor.

BACKGROUND

Appellant filed a formal complaint on April 17, 1998, alleging

discrimination on the bases of age (45 years old) and reprisal when she

was not selected for the GS-986-7/8 Legal Assistant position on December

1, 1997.

In its FAD dated November 5, 1998, the agency dismissed the complaint

pursuant to 29 C.F.R. �1614.107(b). The agency found that appellant

contacted the EEO Counselor on February 10, 1998, seventy-two (72)

days after the incident. The agency found that it provided specific

information concerning the agency's EEO policy including appropriate

time frames in postings on the office bulletin board at the time of

appellant's non-selection. The agency found that appellant failed to meet

with an EEO Counselor within forty-five (45) days and failed to establish

good cause for her failure to do so. Therefore, the agency dismissed

appellant's complaint untimely EEO contact. This appeal followed.

On appeal, appellant, through her representative, argues that she

did exercise due diligence in pursuit of her claim of discrimination.

She states that she contacted the union the day after she was informed

of her non-selection. She further alleges that the union failed to act

in a timely manner. Appellant also alleges that she did not contact an

EEO Counselor because she did not want to do so without representation

and she was unaware of the EEO procedure.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in �1614.105, �1614.106 and

�1614.204(c), unless the agency extends the time limits in accordance

with �1614.604(c).

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within 45 days of

the date of the matter alleged to be discriminatory or, in the case of

a personnel action, within 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the

Commission to extend the time limit if the appellant can establish that

appellant was not aware of the time limit, that appellant did not know

and reasonably should not have known that the discriminatory matter

or personnel action occurred, that despite due diligence appellant

was prevented by circumstances beyond her control from contacting the

EEO Counselor within the time limit, or for other reasons considered

sufficient by the agency or Commission.

The Commission has adopted a "reasonable suspicion" standard, as opposed

to a "supportive facts" standard, to determine when the limitation period

is triggered. See Ball v. United States Postal Service, EEOC Request

No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)

- the predecessor of 29 C.F.R. �1614.105(a)(1)).

In the case at hand, appellant alleges that one of the reasons she

was untimely in her contact of the EEO Counselor is that she was

waiting for the union to act upon her situation. Upon review of the

record, it appears that appellant contacted the union in order to

file a grievance. With regard to the grievance procedure initiated by

appellant, the Commission has long held that the use of the negotiated

grievance procedure does not toll the time limit for contacting an

EEO Counselor. See Schermerhorn v. United States Postal Service, EEOC

Request No. 05940729 (February 10, 1995); Qualls v. Navy, EEOC Request

No. 05950273 (June 7, 1996). Therefore, we find that appellant should

have contacted an EEO Counselor within forty-five days from becoming

aware of her non-selection unless there is another reason sufficient to

waive the time limitation.

On appeal, appellant also alleges that she was not aware of the

time limit. Upon review of the record, appellant stated that she told

the Union President that due to the delay by the union, she missed the

forty-five (45) day time limit to contact an EEO Counselor regarding her

complaint.<1> Therefore, we find that appellant had knowledge of the

time limit. Appellant contacted the EEO Counselor on February 10, 1998,

after the expiration of the time limitation. Therefore, the Commission

finds that appellant failed to contact the EEO Counselor in a timely

manner.

CONCLUSION

Accordingly, the decision of the agency 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:

Oct. 20, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 See appellant's letter to the EEO Counselor dated March 10, 1998, which

was to clarify the reason she contacted the Counselor in an untimely manner.