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.